Appendix — Bierenbaum v. Graham

SUPREME COURT, APPELLATE DIVISION

First Dept., October 2002

Richard T. Andrias J.P.

David B. Saxe

John T. Buckley

David Friedman Jed.

The People of the State of New York,

Respondent,

Ve

Robert Bierenbaum,

Appellant.

OPINION OF THE COURT

Marlow, J.

A jury convicted Robert Bierenbaum of second-degree

murder based on circumstantial evidence that on July

7, 1985 he intentionally killed his wife, Gail Katz

Bierenbaum, 1n_ their Manhattan apartment;

transported her body to a New Jersey airport the

same day; loaded it onto a small private’ plane; and

piloted it over the Atlantic Ocean where he discarded

her remains. Neither her body nor her remains has

ever been found.

On this appeal, we address the following four issues:

First, defendant contends the trial evidence is legally

insufficient and the verdict is against the weight of

the evidence.

App. 1

Second, defendant complains that the trial court

erroneously allowed the jury to learn (a) of the

existence and nature of a letter written to his wife by

his psychiatrist warning her of the danger defendant

posed to her; and (b) of several of her verbal

statements to various people describing defendant's

threatening remarks and_ otherwise negative

behavior.

Third, he argues that the Trial Justice should have

precluded, and that the prosecutor inappropriately

used, evidence that defendant choked his’ wife

rendering her unconscious in the autumn of 1983,

including evidence of her statements to her cousin

over the phone, which the court admitted as “excited

utterances.”

Fourth, he urges that the court incorrectly allowed

the People to introduce opinion testimony by a

medical examiner, and demonstrative and opinion

evidence by a police pilot and two other experts, that

it is possible for a surgeon/pilot, alone, to dismember a

110-pound body in 10 minutes, load a 36-inch-long

package contaiming the body's disarticulated remains

onto a small airplane, and, also while alone in the air,

throw it into the ocean.

We agree with only one claim of error. [lowever,

because we find it harmless, we affirm.

THE CIRCUMSTANTIAL EVIDENCE

That the victim died July 7, 1985 is conceded. That

defendant was the last person who saw her, and who

was known to *123 have been alone with her until

App. 2

11:00 A.M. that day, cannot be persuasively disputed

on the basis of this record. Contested are the way and

reason her life ended, the way her killer disposed of

her body immediately thereafter, and her killer's

identity and state of mind.

The trial testumony and physical exhibits revealed the

following:

In 1982 defendant and the victim married. From the

beginning, they quarreled frequently. No witness

disputed that their discord and fighting reached a

level characterized by threats against the victim and

at least one previous violent act by defendant against

her. Defendant essentially admitted as much, and was

heard to say, more than once, that during one

argument there was “physical contact,” that their last

argument was “explosive” and “severe,” and that he

was frustrated in his marriage because they argued

constantly. He also said that he hated the victim so

much, and that she would get him so upset, that he

wanted to kill her.

They both complained many times to many people

that their marriage was loveless and their life

together was stormy. On one occasion a coworker

overheard defendant in a common work area arguing

loudly with his wife over the telephone. The victim

would complain also that defendant tried to exert

excessive control over her, and she expressed fear of

him more than once. The record is replete with

evidence depicting events and statements which

motivated the victim to end her marriage. In 1984,

she was so unhappy that she consulted a divorce

lawyer.

App. 3

One day in the fall of 1983, at about 3:00 P.M., the

victim called her cousin, Hillard Wiese, an attorney,

at his office. “[S]peaking in very hushed tones and

very rapidly” and “sound[ing] extremely upset,” she

told him that she and defendant had a fight the night

or day before. She said that he, not for the first time,

had choked her, although this was the first time she

was thereby rendered unconscious. When she came to,

he begged her forgiveness and promised it would

never happen again. She told Wiese she was speaking

quickly and softly because she was_ expecting

defendant. She called Wiese again the following day to

let him know she took his advice and was staying with

her grandfather.

On another occasion, while the couple was watching a

television program about the von Bulow murder case,

defendant told the victim that the “problem with

Claus von Bulow is that he left evidence and

[defendant] would not leave evidence.” The testimony

revealed that the victim perceived this statement as a

threat.*124

The trial record also makes it clear--notwithstanding

the victim occasionally vacillated about terminating

her marriage--this couple was on the verge of divorce

in July 1985. While married to defendant, the victim

had an affair with at least one other man; just before

the day she disappeared she stated to a friend she was

about to tell defendant she wanted a divorce; she had

borrowed money to prepare to leave; she said she was

seeing one or two other men and that she loved one of

them; she was looking for an apartment and was seen

with circled newspaper ads for apartment rentals the

day before she disappeared and her friend had offered

her a place in Connecticut to stay while she got

App. 4

herself resettled. Defendant himself said his wife told

him she wanted a divorce.

The proof is most telling that on the very day the

victim disappeared, she intended to _ confront

defendant with her decision to leave him. She was

also determined to make it clear to defendant that she

would use a letter, written to her by his psychiatrist

warning her of the danger he posed to her, in order to

humiliate him with his professional peers should he

refuse to meet her divorce settlement demands. To

that same end, she also planned to threaten to expose

his and his father's alleged multimillion-dollar

Medicare fraud.

At the time the deceased disappeared, defendant was

a surgical resident at Maimonides Hospital and a

licensed pilot. On July 7, 1985, at 4:30 P.M., he rented

a Cessna 172 plane at Caldwell Airport in Fairfield,

New Jersey. He returned it after one hour and 56

minutes, giving him time enough to fly round trip

approximately 165 miles over a part of the Atlantic

Ocean. From the rental office's vantage point, one

would not have been able to see defendant on the

tarmac getting ready to board--and possibly load

luggage or other items onto-- the plane, which was in

a position readily accessible by automobile for such

purposes.

Later the same day, around 6:30 P.M., defendant

arrived alone at his sister's Montclair, New Jersey

home for his nephew's birthday party. There he told

his father that he and his wife had an argument

earlier that day, that she left for Central Park, and

she had not returned by the time he left Manhattan.

Significantly, he omitted telling his father that he had

App. 5

flown an airplane for nearly two hours that very

afternoon.

That evening, he went to the home of his friend, Dr.

Scott Baranoff. From there, he telephoned his

apartment more than once. A seemingly distraught

defendant also told Baranoff about the argument,

adding that his wife had not yet returned *125 after

having left their apartment wearing shorts, a halter

top and sandals. However, he again omitted to

mention that he had rented and flown an airplane for

almost two hours that same afternoon, a consistent

omission whenever he told others about the events of

July 7.

When defendant returned to their Manhattan

apartment, he telephoned his wife's friend and former

psychology teacher, Dr. Yvette Feis. He told her of the

argument and that the victim had left for Central

Park with a blanket for sunbathing. Defendant and

Dr. Feis spoke daily that first week, but during the

first few calls she urged him to contact the police and

to speak to the doorman.

At 9:00 P.M. the next mght (July 8), he finally spoke

to Detective Vergilio Dalsass, telling him that his wife

left their apartment at 11:00 A.M. on-July 7 to

sunbathe in Central Park wearing pink shorts and a

white t-shirt. He stated he had remained behind in

their apartment until 5:30 P.M. before leaving for his

sister's New Jersey home.

Before ending that July 8 interview, Detective

Dalsass repeated his appeal to defendant to leave out

nothing, saying:

App. 6

“I pretty much told him that any information that will

assist in finding Gail was rather important. He was

the individual that las[t] saw her in the apartment.

Any friends, relatives, anything that could assist me

would certainly be very beneficial in locating her as

quickly as possible.”

Defendant offered that Gail had, years earlier,

attempted suicide. Yet, he omitted to tell the detective

that he was a pilot and that on the previous afternoon

he rented a plane from a New Jersey airport between

4:30 P.M. and 6:30 P.M. for a two-hour flight. He also

failed to mention to both Detective Dalsass and later

to Detective Thomas O'Malley--as he had indeed told

others-- that he allegedly left his apartment Sunday

afternoon to search for his missing wife in Central

Park and there allegedly found her towel and suntan

oil.

For the entire week immediately following the

victim's disappearance, defendant failed to return

Detective Dalsass' approximately eight telephone

answering machine messages. However, on July 10,

he called Detective O'Malley inquiring how the

investigation was proceeding and met with him on

July 13. During that meeting he told O'Malley that he

drove his father's Cadillac to his sister's New Jersey

home on July 7, instead of his own [smaller] Datsun,

as his car allegedly had mechanical problems.*126

Defendant called a number of the deceased's friends

voicing expressions of concern that she may have

harmed herself, specifically attributing that notion to

comments made to him by her therapist, Dr. Sybil

Baran. However, Dr. Baran unequivocally denied she

had ever said anything like that to defendant or that

App. 7

she ever discussed anything with him on that subject.

To the contrary, it was her professional opinion, based

on three years of treating the deceased once or twice

weekly, that she was not suicidal.

Defendant also suggested to others that his wife was

depressed and thus may have killed herself, disclosing

also that she had tried to commit suicide years

earlier.

Furthermore, on July 14, while with his wife's friend

Maryann DeCesare and a group of friends who were

searching for her and posting missing person signs in

Central Park and elsewhere, defendant quipped that

he thought his wife--who was missing for a full week--

was on a shopping spree at Bloomingdale's, adding,

“You know what a JAPEN* she was.” When the search

party returned to the marital apartment--only seven

days after his wife's disappearance--defendant

volunteered to his mother-in-law, in DeCesare's

presence, “I wonder why the cat got sick. I had to take

the rug out to be cleaned.”

Later on July 14, at a meeting at Detective Dalsass'

office arranged by the deceased's sister Alayne Katz,

and with her parents and defendant's father also

present, Dalsass interviewed defendant again face-to-

face. The detective specifically made it clear to

defendant the importance of omitting nothing in

FN*’Offensive Slang A Jewish-American girl or

woman regarded as being pampered or overindulged“

(American Heritage Dictionary of the English

Language 935 [4th ed 2000)}).

describing and detailing for him the last three days

App. 8

his wife and he spent together:

“I opened up with anything that might be

instrumental! in locating Gail. However minor it might

be it was very important. That anything said, however

insignificant it could possibly be used to find her and

locate her ...

“I told the defendant that he should give me a

narration of the time he spent over the last weekend.

Not excluding anything from the time he last saw,

going back as much as he can ...

“I told him that any information is useful. Anything

*127 could be helpful in locating Gail. Something that

might be very innocent might develop into a lead

where she might be.”

Notwithstanding these and other direct,

uncomplicated admonitions, defendant omitted telling

Detective Dalsass that he and his wife had argued

that Sunday morning. However, in the July 8

interview, he had specifically denied that the reason

she left the apartment at 11:00 A.M. to sunbathe in

Central Park was related to an argument that

morning. In addition, he had, the day before (July 13),

told Detective O'Malley that he and his wife had

argued the might before she “disappeared” and

continued arguing on the morning of July 7,

prompting her to go to Central Park at 11:00 A.M. to

“cool off.”

He again omitted on July 14 to tell Dalsass--and

O'Malley as well the day before--that he was a

licensed pilot, rented a plane in New Jersey, and flew

it for two hours from 4:30 P.M. to 6:30 P.M. on July 7.

App. 9

Instead, he falsely told both detectives, on a total of at

least three occasions, that he stayed in his Manhattan

apartment all day until 5:30 P.M., emphasizing to

Dalsass that he was “positive” that “he left [his

apartment] at 5:30 [P.M.}.” He also changed his claim

that on July 7 he had spoken to the doorman who, he

had originally maintained, said he saw the victim

leave the building Sunday shortly after 11:00 A.M. In

fact, the doorman did not speak to defendant July 7

and could not recall seeing either defendant or the

deceased that day.

Further, he told Dalsass, in some detail, that on

Saturday afternoon, July 6, while he and Gail

shopped at various local stores, they argued about

finances and other matters which he refused to

disclose. He said the day ended with a Saturday

evening, candlelight dinner in their apartment, but he

again declined to discuss whether this interlude,

described by him as romantic, helped resolve the

argument. Detective Dalsass expressed frustration

over defendant's lack of cooperation and his delays in

returning phone calls and providing the police with

information to aid their search efforts.

Furthermore, although defendant told friends he

searched for the deceased in Central Park on July 7

between 11:00 A.M. and 5:30 P.M. and found her

towel and suntan oil in the park, he never shared that

highly significant detail with O'Malley or Dalsass on

the two interviews each had held with him during the

seven days following July 7. To them he insisted that

he had remained in the apartment until 5:30 P.M.

without leaving at all.

The record also reveals that, although in July

App. 10

defendant told Detective Dalsass he would respond to

his request to view the apartment, defendant in fact

did not contact Dalsass until September 12, 1985, and

he did not permit entry until September 30. When

Dalsass arrived, the crime scene unit was only

allowed to search for fingerprints, the victim's diary

and her address book. The investigators were not

permitted to check for blood or hair samples or to

search for “anything that we could document that a

crime took place.”

In the days, weeks, months and years following his

wife's disappearance, defendant made _ several

inconsistent, unfounded or otherwise suspect and

incriminating statements. Among them are the

following examples: he told Detective Dalsass that he

and his wife had no argument on July 7, but he told

Detective O'Malley that they argued on July 6 and

continued on the morning of July 7. He told her

friend, Dr. Feis, that they had a severe argument the

day of her disappearance, more severe than he had

originally described to her and to various other

people. He admitted that during the July 7 argument

he failed to heed his psychiatrist's advice to try to

defuse the situation and that this argument on the

day she disappeared became “explosive.” He told

others that he and the victim argued just before she

left for Central Park “to cool off’; another that a

private investigator he had hired found evidence she

was living in California probably with financial help

from her family; others that she had a drug problem,

that she may have disappeared with drug dealers and

that she probably was murdered by her “druggie

friends”; others that she may have run off to live with

someone in the Caribbean; and others that his

missing wife was seen after July 7, 1985 “in some type

App. 11

of fugue state” in the Central Park area and that it

was unlikely she would return.

To one of his Southampton summer housemates in

July 1985, with a demeanor described as lacking in

emotion, he said he and his wife fought on July 7 and

“she had taken a towel and some suntan lotion and

had gone to Central Park. She wanted to cool off and

he waited a couple of hours and then he went looking

for her and he found the towel and the suntan lotion

but she was gone.” Also, shortly after she vanished, he

told his Southampton summer landlord that after his

wife left he went through her drawers and found

cocaine, prompting him to believe she went off with

drug dealers. To yet another, he described his missing

wife as a tramp, off living with someone else.

In addition, he made contradictory statements to the

police and others about whether he cleaned his living

room rug shortly after July 7, telling the police he did

not, but telling the victim's friend, Dr. Feis, and

others that he had.

A few weeks after his wife disappeared, defendant

began dating a nurse whom he knew from

Maimonides Hospital where they were employed. In

late July or early August, defendant asked her out,

and they became intimate on their first date. They

saw each other socially about five times over the next

six weeks, until she abruptly ended their relationship

because, in her view, he unjustifiably “attacked” her

verbally one evening in a restaurant. Early in that

period, before they began dating, and therefore

significantly before the end of September, he falsely

told her the police had searched his apartment and

car and found him to be “clean.” Furthermore, she

App. 12

testified that, during that early period, he expressed

no concern about his wife's disappearance.

Thereafter, commencing in September 1985 and

continuing for a period just under one year, defendant

invited a medical student, Dr. Roberta Karnofsky,

who worked under his direct supervision at Coney

Island Hospital, to live with him in the marital

apartment. They began dating a month before she

moved in. During their entire relationship, she did not

observe him make any efforts to locate his missing

wife.

Dr. Karnofsky also remembered a phone call

defendant received one morning at 3 o'clock, a few

months after she moved in. The call came from the

police who insisted that he immediately come in to

view a woman they had found at the New York Port

Authority Bus Terminal, someone they thought might

be his missing wife. After he hung up and she asked

him whether under the circumstances she should

pack her things and vacate the apartment, he told her

not to worry because he “doubt [s] it is Gail.” Although

he had expressed some apparent frustration because

the police were insisting he come to the terminal at

that hour, he complied. When he later returned, he

tersely remarked to his roommate that it was not his

wife.

At one point while they lived together, on a day that

Dr. Karnofsky was angry or annoyed with defendant,

and, having heard a number of accusatory answering

machine messages directed at defendant, she

confronted him “to see what his reaction [would be}”:

“What I said to him was, well, I think that if you did

App. 13

this and if it really happened as some people *130

seem to think it did, that perhaps something

happened in the apartment and you intentionally or

unintentionally--Gail was hurt, you could have put

her in one of those big flight bags or duffel bags and

carried her out of the apartment since she was very

small, put her in the back of your car, drive out to the

airport and thrown her body out of the plane.”

Defendant displayed no reaction, “[h]le didn't say

anything.”

About midway through their one-year relationship,

defendant gave his approval to have Dr. Karnofsky's

girlfriend, Sharon, also move into the apartment

temporarily. She expressed this homicide theory to

Sharon one day while defendant was not home.

Together, the two women looked for and found

defendant's flight log. In it, they located a

handwritten entry which appeared to have been

changed from the original notation of July 7, 1985 to

the substituted date of August 7, 1985. The jury saw

this altered document.

Another woman whom he dated in Las Vegas in 1995

asked him on their first date whether he had ever

been married. When he exhibited hesitation in...

responding to her, she jokingly asked him if he had

killed his wife. Defendant was “pretty surprised and

stunned” and asked her what she knew. When she

asked what had happened, he told her his wife may

have committed suicide or may have met with foul

play, as she had dated a variety of men. He also

disclosed to his date that in the past he had a bad

temper, but that it had gotten much better. Finally,

she observed that defendant was “meticulous,” even

App. 14

“compulsive,” about making flight log entries.

Through the testimony of several witnesses, including

four expert witnesses-- New York City's Chief Medical

Examiner, an experienced New York City police pilot,

an aviation safety inspector, and an airline transport

pilot/flight instructor/FAA flight test examiner--the

People established that it was physically possible for

defendant, a surgical resident and pilot, unassisted, to

disarticulate a recently expired body of the victim's

size (5 feet, 3 inches tall, weighing 110 pounds) within

10 minutes, pack her dismembered torso and limbs

into a flight/duffel bag and carry them through an

unmonitored rear exit of his apartment building for a

distance of two blocks to his garaged car. They also

proved that it was also feasible for him to so transport

the bag containing the decedent's remains--whether

disarticulated or intact--to Caldwell Airport in

Fairfield, New Jersey, and load it aboard a Cessna

172 plane *131 directly from the car parked alongside

on the tarmac, all unnoticed. They further established

that it was possible for defendant, also alone, to pilot

the Cessna 172 over the Atlantic Ocean as much as 85

miles east of the shoreline, maintain sufficient control

of this relatively easy-to-operate plane so as _ to

singlehandedly throw these human remains from the

air into the ocean, and then land back at the same

airport, all in less than two hours of flight time.

Without objection, the prosecution showed the jury a

videotape specifically prepared for trial,

demonstrating how defendant could have

accomplished this from the point of loading the 110-

pound body onto the plane, discarding it over the

ocean, and landing back at the same airport.

r

App. 15

DISCUSSION

1. Reasonable Doubt

(1) In our role of reviewing the sufficiency of trial

evidence as an appellate court in a_ purely

circumstantial evidence case, we must decide whether

a guilty verdict is based on legally sufficient evidence

by “determin [ing] whether any valid line of reasoning

and permissible inferences could lead a rational

person to the conclusion reached by the fact finder on

the basis of the evidence at trial, viewed in the light

most favorable to the People” (People v Williams, 84

NY2d_ 925, 926 [citations omitted]). Judged by that

standard, we find and hold that the circumstantial

evidence adduced at this trial decisively extinguishes

any doubt that defendant Robert Bierenbaum, and no

one else, intentionally killed his wife Gail Katz

Bierenbaum, brought her body to Caldwell Airport in

Fairfield, New Jersey, loaded it onto a small plane,

flew it over the Atlantic Ocean, and, there, dumped

her remains.

Furthermore, in a case based on. circumstantial

evidence--as this is--we must also adhere to the

dictates of People v_ Benzinger (36 NY2d 29, 32)

expressed again in People v_ Setfert_(152 AD2d 433,

440,lvu denied75 NY2d 924) as follows: “ [w]hen

reviewing a case based — exclusively upon

circumstantial evidence, the facts must be viewed in

the light most favorable to the People [citations

omitted], and it must be assumed that the jury

credited the People's witnesses and gave che People's

evidence 'the full weight that might reasonably be

accorded it' (People v Benzinger, [supra at 32; other

citations omitted]).”

App. 16

The two circumstances, i.e., (1) that the police never

recovered the victim's body and (2) that no one other

than the victim and her killer personally witnessed

the violent act which *132 ended her life, do not bar a

valid murder conviction under current law. That was

not always the case. Thus, under Ruloff v People (18

NY_179), those two facts once precluded a murder

prosecution in New York. In that 1858 case, the Court

of Appeals held, “without direct proof of the death, or

of the violence or other act of the defendant which is

alleged to have produced death,” a murder conviction

may not stand (rd. at 184).

However, in 1982, in People v Lipsky (67 NY2d 560),

the Court of Appeals overruled Ruloff.Indeed, the

Lipsky Court expressed “no hesitancy” 1n holding that

“the corpus. delicti may be_ established by

circumstantial evidence” (id. at 569). The clear and

direct language the Lipsky Court selected to disavow

the 124-year-old Ruloff ruling 1s significant in light of

the Ruloff facts, because those facts are, in several

key ways, similar to those at bar. No murder weapon

was ever found in either case, neither defendant

confessed, neither murder was witnessed, and neither

victim's body-- or any remains--was ever found.

As defendant now also argues that the verdict is

against the weight of the evidence, this Court, in its

unique factual reviewing role, must also determine

whether, “based on all the credible evidence, a

different finding would not have been unreasonable”

(People v_ Bleakley, 69 NY2d 490, 495). Should we

answer that inquiry in the affirmative, we next “must

. 'weigh the relative probative force of conflicting

testimony and the relative strength of conflicting

App. 17

inferences that may be drawn from the testimony'

(People ex rel. MacCracken v Miller, 291 NY 55, 62

[other citations omitted]). If it appears that the trier

of fact has failed to give the evidence the weight it

should be accorded, then the appellate court may set

aside the verdict (CPL 470.20 [2]).” (d.)

Applying these principles to the evidence in this

purely circumstantial murder case, our review

convinces us that, notwithstanding the facial

attractiveness of some of the factual arguments

defendant's appellate counsel presents, this guilty

verdict, based on the proof this jury heard and saw, is

the only fair and reasonable outcome (see People vu

Sanchez, 61 NY2d 1022, 1024).

That is not to say that some of the many items of

incriminating evidence, when each is evaluated in

isolation, are not susceptible to arguable inferences

which at first blush seem consistent with defendant's

claim of innocence. But, when one attentively reviews

and critically assesses all the circumstantial evidence,

cast in its aggregated and interwoven symmetry,

andafter*133 applying all natural and reasonable

inferences, the conclusion that defendant murdered

his wife on July 7, 1985 becomes inescapable, and the

evidence excludes beyond a reasonable doubt any

reasonable hypothesis of innocence.

This abundant array of damning circumstantial

evidence proves beyond any reasonable doubt that

defendant intentionally killed this victim; that he did

it on the date, at the time and for the reason the

People offered; and that he disposed of her body as the

People contend. When one applies the appropriate

legal principles, these conclusions become most

App. 18

compelling for a rational, dispassionate and attentive

factfinder.

To begin with, any notion that the victim disappeared

in some way other than her actual demise on July 7,

1985 is utterly dispelled by a combination of the

legitimate inferences raised by all the proof and by

defendant's concession that his wife died, and that she

died that day. There is every reason in this record to

find that defendant was the last person to see her

alive at 11:00 A.M. that Sunday morning. Apart from

the fact that there is no reliable evidence that anyone

else saw or heard from her thereafter, defendant

repeatedly admitted to several people, including his

father, that he last saw her then. In fact, defendant

even misstated to Detective O'Malley that the

building doorman said he last saw her leave the

building shortly after 11 o'clock on July 7. Defendant

later retracted that claim.

Second, he admitted that their marriage was unhappy

and virtually over, and that his own anger had

reached a level tempting him toward violence against

her because he was so frustrated by the strife between

them. Moreover, he told Dr. Feis--after withholding

the whole truth from others, and from her during

their many earlier conversations subsequent to July

7--that his last encounter with his wife on July 7

ended in an argument more “severe” than he had

previously let on, that it “had become explosive,” and

that in its midst he had failed to heed his

psychiatrist's advice to “defuse the situation.” More

specifically, he also admitted to his father that they

had “difficulty in adjusting to each other,” and in 1983

“ [t]hat they had an argument, had some physical

contact.” By way of corroboration, Dr. Leigh

App. 19

McCullough testified that in November 1983 she saw

“finger shaped” bruises on the victim's neck, and the

latter told her that defendant choked her when he

became angry at seeing her smoking a cigarette.

By 1985, the parties' three-year-old marriage can

fittingly be described as an emotional battleground.

Verbal strife plagued *134 it, express and implied

threats uttered by defendant aggravated it, and

defendant's admitted violence against his victim

during at least one episode surely worsened it. By

July, it was against this backdrop that a divorce was

virtually inevitable--a situation exacerbated further

by defendant's knowledge of his wife's adultery.

Armed with circled apartment rental ads the day

before she disappeared, the victim declared to her

close friend, Denise Kasenbaum, that she was leaving

defendant that weekend. The evidence is also strong

that she was determined to confront defendant with

her divorce demands. Her stated intentions, should

defendant refuse to accede to those demands, were

plain. First, she would threaten to humiliate him by

publishing to his_ professional colleagues and

superiors a warning letter she had received from

defendant's treating psychiatrist; and, second, she

would threaten to expose an alleged Medicare fraud in

which she claimed he and his father were allegedly

involved. As discussed at greater length elsewhere in

this opinion, notwithstanding defendant's contentions

to the contrary, this evidence is clearly relevant not

only to motive, but to intent and identity.

That the victim had once before confronted him with

the same letter and her same threat weeks or months

before July 7 does not, as defendant now urges,

App. 20

diminish the potential explosiveness of her intended

confrontation on the weekend she died, because the

testimony is otherwise clear and certain that she once

again intended to tell defendant over that weekend

that she was divorcing him. To reject any notion that

the victim intended to use the letter a second time

simply because she may have already used it once

before would unreasonably ignore her various

statements, her reasons for wanting a divorce, and

her state of mind as that fateful weekend approached.

While no one other than the victim and defendant was

present to observe what transpired in the marital

dwelling on the morning of July 7, the inference from

the foregoing circumstantial facts 1s most compelling,

if not irresistible, that they had a_ hostile

confrontation that weekend about the future of their

marriage, its serious problems, and how each would

deal with them. No other inference finds any support

in this record, and none could survive an impartial

and objective assessment of the proof, particularly in

hight of defendant's admission that their argument

was “severe” and “had become explosive.”

These facts establish beyond any question that this

marriage existed in a volatile, highly emotional,

turbulent and dysfunctional *135 environment. This

couple had a history of angry words and deeds, of

threats, and of violence; they harbored a wide range of

feelings ranging from ambivalence to profound

hostility toward each other, and, beyond their

generalized resentment, defendant had _ evident

motives to kill the decedent. Surely, killing her would

not only end their miserable and loveless marriage,

and end it without the expenses and financial burdens

of divorce, but it would also stop her from carrying out

App. 21

her threats to expose his violence and his alleged

fraud. Exposing these transgressions, if it did not

disgrace him, would most certainly compromise his

professional standing, damage his _ personal

reputation, and injure his short- and long-term career

plans and income potential.

Moreover, his behavior with other women so soon

after July 7 is inconsistent with behavior one would

reasonably anticipate from a husband whose wife had

mysteriously disappeared, notwithstanding that their

marriage was stormy. Indeed, his behavior utterly

belies his claims of ignorance of his victim's

whereabouts. This conclusion is effortlessly drawn not

nearly so much because he began dating so soon, but

much more because of his obvious and expressed

confidence his wife would never return.

After all, he made several statements making it

appear he had no idea how his wife disappeared,

where she was, and when or whether she would ever

return. Contemporaneously with these expressions of

despair and bewilderment, he promptly had sexual

relations on his first date with a nurse in the very

room he and his victim had rented for the 1985

summer in the Hamptons, less than a month after she

“vanished.” One can reasonably infer that he knew

she would not suddenly return and appear at his

bedside.

Furthermore, he invited a different woman to move

into the marital apartment with him in September

1985. When a few months later he received an early

morning telephone call from the police indicating they

may have had his lost wife at the precinct, he was less

than anxious to accede to their request that he

App. 22

immediately leave his bed to possibly identify his

“inexplicably missing” wife. At that point and with no

expressed hesitation or apparent lack of confidence,

he told his paramour to remain in bed through the

night in the marital apartment, because he “doubt

[ed]” it was his wife. This aspect of the evidence, when

viewed with all else the People proved, compels

inferences that defendant had an informed reason,

based on his own direct knowledge, to be completely

unconcerned *136 that: (a) his paramour might

shortly be forced to confront his “missing wife” in her

own bedroom; and (b) his early morning trip to the

precinct would reunite him with her.

In addition to the foregoing powerful circumstantial

evidence, the People contend that the interplay

between certain items of evidence also supports the

verdict. They argue that when certain established

facts are juxtaposed with other proven circumstances,

defendant's multiple contradictions and omissions are

patently incriminating. Therefore, in the aggregate,

the People convincingly advance the conclusion that

the jury's verdict was correct. [llustrative--but not

exhaustive--are the following examples:

1. Defendant misstated that the doorman told him he

saw the victim on the afternoon of July 7, when in fact

the doorman made it clear he saw her last on July 6

and he could not remember whether he saw either the

victim or defendant at all on July 7;

2. Defendant described differently to different people

the items the victim took and the clothes she wore

when she purportedly left to sunbathe in Central

Park, and whether she was then wearing shoes and

her engagement ring;

App. 23

3. Defendant gave contradictory accounts about

whether and why he sent the living room rug out to be

cleaned immediately following the decedent's

disappearance, but completely withheld’ that

information from the police;

4. He was inconsistent about his purported knowledge

of his wife's post-July 7 whereabouts, alluding to

different theories and purported sightings to different

people. Defendant variously suggested or stated that

his wife was wandering around Central Park in “a

fugue state,” that she had a drug problem and ran off

with drug dealers, that she possibly committed

suicide, that she was on a shopping spree at

Bloomingdale's, that she left to hang out with

“druggie friends,” that she might have been killed by

drug dealers, and that she had left for the Carribean

to be with a boyfriend. In one instance he falsely

claimed that a private detective, whom he also

claimed he hired to find her, learned she was living in

California with financial support from her family. Not

a single shred of evidence in this record supports any

of these bizarre claims;

5. Perhaps defendant's most damning omission was

his repeated, false claim to the police and to others

that he remained in the apartment all afternoon on

July 7 and then went directly to his nephew's

birthday party in New Jersey. *137 However, the

evidence also conclusively establishes that he rented

and flew a Cessna 172 airplane beginning at 4:30

P.M. that day from Caldwell Airport in Fairfield, New

Jersey and returned two hours later at 6:30 P.M. He

can hardly claim with any credibility that an

interlude of that nature and length slipped his mind

App. 24

when he spoke to the police and others on the first

day, or, indeed, at least four times during the first

week, following his wife's “unexplained”

disappearance.

Compounding the significance of that devastating

Omission--an omission which concealed the very

means and opportunity to dispose permanently of his

victim's body--is the documentary evidence found in

his home several months after July 1985 showing

clearly that his written flight log entry for July 7 was

changed from July 7 to August 7.

Furthermore, he said to at least two people, not

including the police, that he had searched for his

inexplicably missing wife in Central Park on the

afternoon of July 7 and there allegedly found the

suntan oil and towel she had taken with her when she

left the apartment at 11:00 A.M.

However, notwithstanding that, initially, the police

carefully explained to him at least three times their

critical need to know every detail he was able to recall

in order to aid their search efforts, he withheld all of

this information during their interviews with him--

one encounter a mere 34 hours, and the others all

within seven days--following his wife's disappearance.

It is beyond cavil that this information was relevant

and that it was exactly the type they implored him to

convey. Instead, he consistently told the police and

others that he remained in the marital apartment

from the time the victim had left at 11:00 A.M. until

5:30 P.M., then going directly to his nephew's

birthday party at his sister's New Jersey home;

6. During the first police interview of defendant on

App. 25

July 8 at 9:00 P.M., lasting 45 minutes, Detective

Dalsass asked defendant for a list of the names and

phone numbers of the victim's friends, relatives and

others to facilitate the search efforts. Because

defendant did not have a list with him, Dalsass said

he_ would call defendant's home for it that evening.

However, defendant said he would not be home until

later, as he had plans to dine out--after an interview

which had _ focused on his’ wife's sudden

“disappearance” just 34 hours earlier. Dalsass waited

until 12:30 A.M. and left the first of approximately

eight messages on defendant's home answering

machine and at his work number during the ensuing

week. Defendant responded to none of them.

Consequently, although defendant had contact *138

with Detective O'Malley in the interim, Detective

Dalsass could not speak to defendant to obtain that

vital information until the July 14 interview.

Furthermore, he did not. turn over the victim's

telephone/address book until more than two weeks

after her disappearance;

7. He told several people that, just before his wife left

the apartment for the last time, they argued.

Nevertheless, he contradicted himself among various

versions and aspects of those’ statements.

Furthermore, when defendant spoke to Detective

Dalsass on Monday, July 8 and again on Sunday, July

14, he never said--indeed on July 8 he denied--that he

and his wife argued that morning, even though

Dalsass did acknowledge that defendant, on July 14,

said the victim was “pissed” the morning she left.

However, apparently also on July 8, defendant told

the victim's therapist, Dr. Sybil Baran, that he and

the victim had argued and that “she'd gone off in a

huff’:

App. 26

8. Although defendant would not allow any police

officers to view or inspect his apartment until

September 30, 1985--and then only with severe

restrictions--he, long before that day, falsely stated to

others that the police had searched his home and car

and found him to “be clean”; and

9. Detendant falsely attributed to Dr. Baran the

opinion that the victim was depressed and might have

committed suicide. Dr. Baran unequivocally denied

she had ever made either of those statements to

defendant or that she had even held these opinions. In

fact, several witnesses, including Dr. Baran, described

the victim's state of mind during the period before

July 7 as being “happy,” “jovial” and the like.

Defendant's lies, misstatements and omissions

powerfully bespeak his consciousness of guilt. We

recognize that the law most often views consciousness

of guilt evidence as weak--but not always. The Court

of Appeals has made that clear. In People v Cintron

(95 NY2d 329, 333), the Court said that the “probative

weight” of evidence of consciousness of guilt is “highly

dependent upon the facts of each particular case.” In

an earlier case, specifically referring to a defendant's

false statements, the Court said:

“In the circumstances of this case, it is difficult to

come to any other conclusion than that these false

statements indicate a consciousness of guilt. We

recognize that as a general proposition false

statements are a relevant but weak form of evidence.

*139 (See, e.g., People v. Leyra, 1 NY2d_199.)Since

there may be reasons other than guilt of the crime

charged which would prompt a person to give a false

App. 27

statement, the probative weight of such statements

depends upon the facts of the particular case. On the

facts here, it ts reasonable to assign a moderate degree

of probative force to the false statements.” (People v

Benzinger, 36 NY2d 29, 33-34 [emphasis added].)

In considering whether this defendant's behavior and

statements show evidence of his consciousness of

guilt, we find that they unquestionably do. And, while

we agree this type of evidence, alone, may not and

should not form the basis for a finding of guilt, it may

be taken into account in evaluating all the other

evidence. We further determine that the instant body

of consciousness of guilt evidence--because of its

quality and quantity--exhibits a guilty mind, a finding

which, in this context and under these circumstances,

is surely not weak, or, for that matter, even moderate.

Rather, the evidence is credible and we hold that the

resulting inference is strong.

Of course, if one were to evaluate each item of

evidence in isolation, a different conclusion might be

reached for at least some sequestered items. But, as

the law requires us to look at the body of proof as a

whole, we are convinced it paints a clear picture of

defendant's guilt, and that the jury's verdict is both

supported by legally sufficient evidence and entirely

consistent with its weight.

The People proved beyond a reasonable doubt that

this defendant had the opportunity, the motive, and

the intent to kill his victim, and that it was he who

did so. Beyond that, the proof also clearly shows how

he went about it, that she did not kill herself, nor that

any boyfriend or drug dealer killed her.

App. 28

Apart from the fact that defendant's alternate

theories of his victim's demise have no evidentiary

support, the existing evidence itself also refutes them.

Her body was never found and the great weight of the

evidence shows that she was anything but desperate

or depressed so that one might reasonably fear she

was contemplating suicide. That was the

overwhelming opinion of those closest to her,

including her gynecologist, her therapist of three

years, and her sister, three confidantes in the best

position to know. Moreover, it is unlikely that one's

body would vanish without a trace in the aftermath of

self-inflicted death.

As for any suggested theory that someone other than

defendant killed her, no proof exists in this record

which is even *140 remotely consistent with such

speculation, and there is no one other than defendant

Bierenbaum who, like he, had the motive or had the

exclusive opportunity to kill her at the time and place

where the victim was last seen alive; and, surely,

there was no one who signaled his obvious guilt by

covering and distorting the truth as this defendant

repeatedly did. His claim of innocence--and the

presumption which accompanies it--has been utterly

overwhelmed and destroyed by the People's proof.

In our sufficiency review, we have determined that a

“valid line of reasoning and permissible inferences

could lead a rational person to the conclusion reached

by [this jury] on the basis of the evidence at trial,

viewed in the light most favorable to the People ...”

(People v Williams, 84 NY2d 925, 926). Furthermore,

there is virtually no conflicting testimony within the

People's case to compare against the weight of the

People's credible proof, proof which so firmly supports

App. 29

this conviction. Moreover, the testimony of the only

defense witness, Joel Davis, suggesting that he saw

the deceased on the afternoon of July 7, was

extremely weak. It was appropriately rejected by the

jury. Accordingly, there can be no holding that this

verdict is against the weight of the evidence.

It is clear to us that a finding other than guilt would

not have been reasonable. We also conclude that even

if a different finding were somehow’ deemed

reasonable, there can be no rational view after “‘weigh

fing] the relative probative force of conflicting

testimony and the relative strength of conflicting

inferences that may be drawn from the testimony'

(People ex rel... MacCracken v_ Miller, 291 NY 55, 62

[other citations omitted]),” that this jury “failed to

give the evidence the weight it should be accorded”

(People v Bleakley, 69 NY 2d 490, 495).

In light of the foregoing, this verdict 1s supported by

legally sufficient evidence and it 1ts_ thoroughly

consistent with the evidentiary weight.

2. Psychiatrist's Warning Letter and Other Hearsay

(2) The Trial Justice rejected the People's pretrial

request to call defendant's treating psychiatrists and

psychologist as witnesses to testify about factual

matters and opinions connected to their treatment of

defendant, including the conversations they had with

the victim and defendant's parents, after defendant's

consent was procured. The court did, however, permit

the prosecution to adduce testimony that the victim

had received a letter from one of these psychiatrists

warning her of the danger defendant posed to her,

although the Justice prohibited the People from

App. 30

introducing the letter itself. *141 Notwithstanding

that defendant originally consented to having the

psychiatrist speak to and warn the victim and his

parents, he now claims that the ruling allowing

testimony only about the existence and nature of the

warning letter was error because it violated his

statutory privilege under CPLR 4504 (a) and it was

otherwise unduly prejudicial. We disagree.

The psychiatrist communicated the consented-to

warning by sending a letter, sometimes referred to as

a Tarasoff letter (see Tarasoff vu Regents of Univ. of

Cal., 17 Cal 3d _ 425, 131 Cal Rptr 14), to the victim.

The Justice allowed the jury to learn only of its

existence and nature, but not of its specific contents

beyond its warning to the victim that defendant posed

a threat to her. That ruling was correct, first, because

defendant waived his CPLR 4504 (a) privilege by

consenting that the warning be communicated:

second, because a warning under these circumstances

is an exception to the principle of confidentiality since

the psychiatrist is under a duty to warn the intended

target of a patient's violence; third, because the

nature and existence of the warning letter were

relevant to the state of the parties' marriage and

defendant's motive to kill his wife in hght of her

stated intent to use it as leverage in her contemplated

divorce action against defendant by confronting him

with it and threatening to reveal its contents if he

refused to meet her divorce settlement demands; and,

finally, because it was relevant to prove, in addition to

motive and the state of the parties’ marriage, the

interrelated issues of his intent to kill her and his

identity as her killer.

CPLR 4504 (a) in part provides:

App. 31

“Confidential information privileged. Unless the

patient waives the privilege, a person authorized to

practice medicine ... shall not be allowed to disclose

any information which he acquired in attending a

patient in a professional capacity, and which was

necessary to enable him to act in that capacity”

(emphasis added).

Because defendant consented to having the warnings

and disclosures communicated, not only to the victim

but also to his parents, the court's ruling about the

warning letter was correct. As this Court stated in

Matter of Farrow v Allen (194 AD2d 40), once a

patient authorizes his or her psychiatrist to release

what might otherwise be a privileged letter to “a third

party who is completely unconnected to his or her

treatment and whois not subject to any privilege,” its

release “is sufficient to waive the privilege as to the

information contained in *142 the letter itself” (id. at

44:cf. Doheny v Lacy, 168 NY 213, 223-224:Workman v

Boylan Buick, 36 AD2d 978, 979:JIn re von Bulow, 828

F2d 94, 100-101). Since none of the three of these

relatives was involved in providing defendant

treatment nor subject to any other privilege (see

Poppe _v_ Poppe, 3 NY2d 312 [marital privilege

inapplicable where one spouse wrongs another];

People v Davis, 226 AD2d 125, 126,lu dented88 NY2d

1020 [quoting Poppe]; People _v Govan, 268 AD2d

689.lu denied34 NY2d 920 [crime against spouse

extinguishes statutory privilege]; People v Johnson,

84. NY2d 956 [no statutory or common-law

parent/child privilege for adult child under these

circumstances]), the court correctly decided that

defendant waived the privilege. Furthermore, the

Trial Justice gave the People even less leeway than

App. 32

Farrow permits after a waiver, by ruling that only the

existence and nature of the letter--not its factual

content nor the _- physicians' testimony--were

admissible.

Therefore, the Trial Justice's ruling was a careful and

completely reasonable exercise of judicial discretion.

Moreover, the ruling was correct also because of the

Tarasoff exception to the CPLR 4504 (a) privilege.

That exception provides that for compelling policy

reasons the privilege can be overcome when the

patient demonstrates that he poses a clear and

present danger to a third party--in this case his wife.

In MacDonald v_ Clinger (84 AD2d 482. 487), the

Court said:

“where a patient may be a danger to himself or others

(see, e.g., Tarasoff vu Regents of Univ. of Cal., 17 Cal

3d 425;Berry v Moench, 8 Utah 2d 191:Simonsen vu

Swenson, 104 Neb 224), a physician is required to

disclose to the extent necessary to protect a

threatened interest. "The protective privilege ends

where the public peri! begins' (Tarasoff v Regents of

Univ. of Cal., supra, at p 442).”

Defendant also relies on the Trial Justice's rejection of

the People's request to call defendant's three treating

doctors to testify at trial. He thus argues that her

ruling necessarily extends to preclude the People from

also proving the existence and nature of the Tarasoff

letter. However, the Trial Justice specifically stated

her ruling did not apply to preclude the letter's

existence and nature.

Additionally, her key reason for precluding the

App. 33

professionals from giving oral testimony at trial was

that one of their purposes for consulting with

defendant's closest family members was to gain

insights from his family members, *143 insights

which might enhance their treatment of defendant.

That logic, which correctly served to preclude the

doctors from testifying to the information they

conveyed to and received from the family, does not

apply to the existence and nature of the psychiatrist's

letter whose separate purpose was only to warn a

third party, this victim.

Because the letter's separate purpose was to warn,

and, further, to insure that its disclosure at trial for

that valid purpose did not publish its otherwise

confidential contents--and thus breach the court's

associated preclusion order--the court appropriately

placed significant restrictions on the People's use of

the letter. First, the court prohibited the People from

showing the letter to the jury and, second, they were

not permitted to adduce anything other than oral

testimony describing only the type of letter the victim

SE a ae oe ~ fe a

had recéivea irom < i ants pSVCHiaLrisSl.

Defendant next argues that the claimed relevancy of

the Tarasoff letter does not justify its introduction

because-its prejudicial effect outweighs its probative

value. He urges now--as he did at trial--that the court

could have served the People's purpose adequately by

only allowing the People to use the letter to inform

the jury that the letter existed, and stipulating that

its unspecified contents would embarrass defendant.

However, the court, while prohibiting publication of

its specific factual contents to the jury, did allow the

jury to know that the letter warned the victim of the

danger defendant posed to her. Notwithstanding

App. 34

defendant's argument, this limitation was, under

these circumstances, an exercise of discretion which

was fair to both sides for the following important

reason.

One of the prosecution's key assertions was that

defendant was motivated to kill his wife because she

threatened to destroy him by exposing the letter's

contents should he fail to meet her divorce demands.

It was therefore highly relevant to the question of

defendant's motive that the jury be allowed to know

and consider the consequences the victim intended by

threatening defendant with such a disclosure to his

superiors and peers, a disclosure which would likely

compromise severely his professional status, his

personal reputation and standing, and his economic

future. While defendant understandably argues that

this ruling prejudiced him at trial, we hold that under

these circumstances it did not unduly do so. It is clear

to us that the highly probative nature of this

particular proof on the critical questions of

defendant's motive and intent, and of the killer's

identity, far outweighs any prejudice (see *144People

vu Alvino, 71 NY2d 233, 241-242). Indeed, this

prosecution contention--i.e., that it helped expose

defendant's motives--was a valid one, as it is at the

heart of the People's case.

We note further that the court exercised its discretion

appropriately by rulings which significantly and

thoughtfully limited the People. The Trial Justice's

carefully balanced decisions allowed the People to

show only the existence and the general nature of the

letter in order legitimately to probe defendant's

motive. On the other hand, by concomitantly

excluding the letter itself, suppressing its factual

App. 35

content and prohibiting the proffered testimony of

defendant's three treating mental health professionals

whom the People had intended to call as witnesses,

these rulings protected the remaining, essential

aspects of defendant's statutory privilege under CPLR

4504 (a).

Finally, the court's cautionary instructions to the jury

were more than adequate to assure a relevant and fair

consideration of this evidence and avoid prejudicial

impact.

(3) Turning next to defendant's hearsay claims, he

argues that the Trial Justice erroneously allowed

several People's witnesses to testify that the victim

had told them that, inter alia, her marriage was

stormy, that she was afraid of defendant, that he was

very controlling, that there was much verbal strife

between them, that her husband had occasionally

made threatening statements to her, that he once

choked her in 1983 rendering her unconscious, that

she had taken steps to prepare to leave him, and that

she had used and intended again to use the Jarasoff

letter to threaten him if he failed to meet her divorce

demands.

To begin with, the court, on a number of occasions

during trial and at its conclusion, gave the jury

cautionary instructions about the victim's statements

and other related evidence, evidence the People had

introduced to explain two critical factors, ie., the

state of this marriage and both parties' state of mind.

This Court has reviewed these various instructions

given during trial and at its end. We disagree with

defendant and find them fair and legally satisfactory.

App. 36

Defendant also disputes the instructions’ adequacy,

and, beyond that--in addition to urging this Court to

reject the notion of a background exception to the

hearsay rule--he further argues that the testimony

recounting the victim's out-of-court statements was

largely unreliable. He therefore contends it was

inadmissible under Nucci _v_Proper (95 NY2d 597)

even if it were deemed otherwise allowable. We

disagree.* 145

We hold that the reliability of this evidence, initially a

question for the court to resolve, is amply supported

by this record. In Nucci, the Court set forth the factors

relevant to a trial justice's assessment of the

reliability of out-of-court-statements which the People

proffer as hearsay exceptions. The Court said (at 603):

“Reliability is the sum of the circumstances

surrounding the making of the statement that render

the declarant worthy of belief. Relevant factors

include ‘spontaneity, repetition, the mental state of

the declarant, absence of motive to fabricate,

unlikelihood of faulty recollection and the degree to

which the statement was against the declarant's ...

interest’ (see People v James, 93 NY2d 620, 642 [citing

Idaho v Wright, 497 US 805, 821:Dutton v Evans, 400

US 74, 89]). Courts have also ‘considered the status or

relationship to the declarant of the person to whom

the statement was made ..., whether there was a

coercive atmosphere, whether it was made in response

to questioning and whether the statements reflect an

attempt to shift blame or curry favor' (James, supra,

93 NY2d, at 642-643 [citing United States v Matthews,

20 F3d 538, 546, other citations omitted]).”

The victim's contested statements meet virtually all

App. 37

these enumerated criteria. She was speaking

spontaneously; she repeated the _ statements

separately to various people in her life; her

statements about the troubled side of their marriage

were a natural consequence of corroborated facts

about their marriage; she was, by all indications, in

good mental health; there appears no reason for her to

have fabricated the matters she discussed at the time

of her utterances; and her statements largely

concerned private matters that some would be

embarrassed or otherwise reluctant to disclose.

Furthermore, the statements were made mostly to

those close to her, in contexts completely devoid of

coercion, not in response to anyone's questioning, nor

under circumstances at all suggestive of any attempt

to curry anyone's favor.

As for defendant's remaining reliability claims, they

raise questions quite properly within the jury's

province. The proof more than adequately supports

the jury's determinations.

Defendant also argues that although this contested

hearsay information, emanating from the victim, was

admitted purportedly as legitimate background

evidence, there is no “background *146 exception” to

the hearsay rule, and, beyond that, this -“background

information” was highly prejudicial, and, therefore,

the Trial Justice should have precluded it. We hold

otherwise.

Most of the victim's hearsay statements, in one way or

another, bespoke this couple's marital strife and

unhappiness, a perception defendant himself shared

and repeatedly admitted. In a domestic violence

homicide, as this clearly 1s, it is highly probative--

App. 38

quite: often far outweighing any prejudice--that a

couple's marriage was strife-ridden and _ that

defendant previously struck and/or threatened the

spouse-victim (see People v LaFrance, 182 AD2d 598,

599-600,lu denied80 NY2d 905:People v_ Shorey, 172

AD2d 634,lu denied78 NY2d 974). Indeed, 1t has also

been held that such evidence in hke contexts is

“highly probative of the defendant's motive and [ijs

either directly related to or ‘inextricably interwoven’

(People vu Ely, [68 NY2d 520], 529) with the issue of

his identity as the killer” (People v Linton, 166 AD2d

670, 671lu denied77 NY2d_ 879:see also People v

Laverpool, 267 AD2d 93,lu denied94_ NY2d 904:People

v Bonilla, 251 AD2d 82.lv denied92 NY2d 893).

Defendant asserts that because there is evidence of

“only one” earlier act of violence by him against his

wife, this murder case should not be considered as a

“domestic violence homicide,” and therefore there is

no justification for the single alleged choking episode

to be received in evidence along with various threats

and other evidence of discord. In part, he frames his

argument by citing reported “domestic violence” cases

wherein the jury was allowed to learn that the

victimized spouses endured more than one attack by

the accused predating the violent act charged in the

indictment. He thus claims that those cases do not

apply to permit such evidence under these facts

because this case involves evidence of only one prior

assault.

We reject the notion that in a case where an alleged

homicide is the second alleged violent act against a

spouse--instead of, for example, the third, fourth or

ninth--the case may not be treated as a “domestic

violence” homicide for purposes of evidentiary rulings.

App. 39

TT

Whether earlier acts of alleged violence or threats are

admissible depends on the circumstances surrounding

both the past and the currently charged aggressive

acts or threats. A trial court must not merely count

the number of past incidents, but 1t must engage in a

qualitative assessment of the words and deeds which

create the history of the relationship between

defendant and alleged victim. It is on the basis of

*147 that history and its relevance to proving an

element of the crime charged--and, as well, after the

court balances probative value against potential

prejudice--that a court may determine’ the

admissibility of prior evidence of aggressiveness, be it

acts of domestic violence, threats or otherwise.

Encouraging that type of qualitative analysis is the

common theme of this state's settled law on this

subject (see People v Pena, 251 AD2d 66,affd93 NY2d

946 [prior assault admissible]; People v_ Jones, 289

AD2d_ 1010,lu denied97 NY2d_ 756 [prior threats of

violence and acts admissible]; People v Lee, 284 AD2d

412.lu denied96 NY2d 921 [previous assault against

victim admissible]; People v Reynoso, 262 AD2d 102,/v

denied93 NY2d 1025 [prior assault admissible}; People

v__ Steinberg, 170 AD2d 50,affd79 NY2d 673

{uncharged evidence of prior assaultive acts may be

admissible as background to support testimony that

otherwise might be unbelievable or suspect}).

Surely, one can argue as defendant does that any

single aggressive act or threat, or a series of them, can

suggest to a jury a general propensity to behave

aggressively. On the other hand, the acts and/or

threats can--separately or together--demonstrate as

they do in the instant case defendant's specific intent

to hurt a particular human being, i.e., in this case, his

wife, and to do so physically and emotionally. They

App. 40

eee eiienile

also manifest his motives to abuse and control her, to

quickly end a miserable marriage, and ultimately to

keep her from using the Tarasoff letter in a divorce

proceeding to humiliate him, damage his reputation,

imperil his career and jeopardize his financial future.

After reviewing the court's rulings and reasons in this

regard, the other evidence, and the court's cautionary

instructions to the jury during and at the trial's

conclusion, we hold that none of these rulings

compromised defendant's right to a fair trial.

3. Excited Utterances and Prior Violence

(4) Defendant contends that the court improperly

allowed the prosecution to adduce testimony, and

otherwise refer to evidence, that defendant was

violent, and that he choked his wife to the point of

unconsciousness in late 1983. As a part of that

contention, defendant also asserts that the Trial

Justice erred in allowing Hillard Wiese, an attorney

and the victim's cousin, to testify about the victim's

purported “excited utterances” describing the choking

event. The victim, whom Wiese occasionally saw at

family gatherings, telephoned him at his office one

afternoon in the fall of 1983. She was seeking his *148

advice. “[S]peaking in very hushed tones and very

rapidly ...” and “sound[ing] extremely upset,” she said

that “either the day before or the night before she had

a fight with her husband and that during the course

of that fight he had choked her into unconsciousness

....” According to Wiese, she added “that this was not

the first time that they had fought” nor “the first time

he had choked her, but it was the first time she was

rendered unconscious and that she was extremely

upset.” She apparently spoke quickly because she

App. 41

expected defendant to return shortly, and she needed

to know what she should do.

Defendant correctly argues that the victim's

statements during her telephone call to Hillard Wiese

do not constitute “excited utterances.” As the Court of

Appeals recently wrote in People v Vasquez (88 NY2d

561, 579):

“An excited utterance is one made ‘under the

immediate and uncontrolled domination of the senses,

and during the brief period when consideration of self-

interest could not have beenbrought fully to bear by

reasoned reflection’ (People u Brown, ... 70 NY2d [513]

at 518). The existence of a physical shock or trauma

has often been cited as a key consideration (see, People

vu Brooks, 71 NY2d 877;People v Brown, 70 NY2d, at

516-517; 6 Wigmore, Evidence § 1745 [1] (Chadbourn

rev ed]). While the statement must have been made

before the declarant had the opportunity to reflect,

'the time for reflection 1s not measured in minutes or

seconds,’ but rather is measured by facts.“' (People v

Marks, 6 NY2d 67, 72,cert denied362 US 912:People v

Norton, 164 AD2d 3438, 353,affd79_ NY2d 808.)The

court must assess 'not only the nature of the startling

event and the amount of time which has elapsed

between the occurrence and the statement, but also

the activities of the declarant in the interim' (People v

Edwards, 47 NY2d 493, 497 ...).”

To begin with, Wiese was unable to reliably estimate

how long before his cousin called him that the choking

incident occurred. Based on what he said at trial, the

interval could have been as long as 24 hours, hardly a

typical time span to qualify as an “excited utterance.”

Second, the record is totally devoid of evidence about

App. 42

what transpired during these many intervening hours

to enable the trier of fact to determine, based on “the

activities of the declarant in the interim,”' whether

the “declarant had the opportunity to reflect ...” (id.).

Finally, the victim chose to call an attorney, rather

than a *149 layperson, one with whom she did not

have an especially close, personal and confidential

relationship.

Consequently, it is not improbable that her call

followed at least some degree of reasoned reflection.

Thus, it is impossible for a court to conclude safely

that her motivation was untouched by economic self-

interest or unencumbered by concerns about legal

strategy. Finally, although the alleged assault she

recounted was undoubtedly extremely frightening, the

proof shows her mental state so many hours later was

not shown to be dominated by the same level of

heightened excitement that would normally

overwhelm a person in the immediate aftermath of

such a recent traumatic shock.

Therefore, the Trial Justice should not have admitted

the victim's statements to Hillard Wiese as “excited

utterances.” However, we hold that this error was

harmless, because, as we noted earher, the jury

otherwise properly learned that the victim claimed

defendant had committed a violent act against her in

the fall of 1983, as evidence relevant to the state of

their marriage, to defendant's motive, to his intent,

and relevant evidence of identity. Indeed, defendant

himself told his father 1n 1983 that their strife had

reached the point of “some physical contact,” and

there 1s credible testimony that in 1985 defendant

was so filled with hostility that he was tempted

toward violence against his wife. Therefore, even

App. 43

though the victim's phone conversation with Wiese

was erroneously admitted as “excited utterances,” its

core content was nonetheless relevant, admissible,

and the jury properly heard about it from other

witnesses.

Defendant counters this reasoning, contending that

the 1983 choking incident and all the other evidence

and references to threats and marital strife should

have been precluded because they bespeak propensity

and because the People improperly used the choking

incident to suggest that defendant had a propensity

for violence. Therefore, he argues such evidence

unduly prejudiced him, outweighing any of its

probative value.

This complaint--apart from ignoring or

underestimating the appropriate, limiting language

the court carefully chose to caution and instruct the

jury-- misconstrues the rationale underlying People vu

Molineux (168 NY 264) and its progeny. Molineux

authorizes a trial justice to consider allowing a jury to

hear about a defendant's prior bad acts--be they

violent or otherwise--if they shed light on the issues of

intent, identity, motive, absence of accident or

mistake, or common plan and scheme (id. at 293). In

other words, they “may be admitted *150 only if the

acts help establish some element of the crime under

consideration ...” (People v Lewis, 69 NY2d 321, 325).

In this case his behavior and threats were admitted

because they revealed the former three of these five

potentially relevant items.

Often, evidence of prior assaults and_ threats

manifests general aggressiveness, i1.e., a general

propensity to act aggressively against other people. It

App. 44

is this inappropriate and distracting inference which

the Molineux ruling and its progeny aim to bar.

However, the proof here evinces defendant's intent to

focus his aggression on one person, namely, his wife--

his victim. That key factor in the context of marital or

other intimate relationships frequently differentiates

domestic violence assaults and homicides--wherein

prior bad acts have often been deemed admissible

during the People's direct case--from other cases

wherein evidence of past assaultive behavior against

people other than the victim has most properly been

precluded. In the former, the previous aggression

principally indicates intent, or motive, or identity;

whereas in the latter it can predominantly give rise to

an inference of propensity. This logic and rationale

accords with well-settled law in New York in these

matters (People v Angel, 238 AD2d 210,lu denied90

NY2d__1009;People vu Bonilla, supra; People v

LaFrance, supra).

Finally, this evidence shows that this defendant was

motivated and had an intent to harm this victim.

There 1s little or nothing by way of circumstantial

evidence that is more relevant or more probative ina

circumstantial murder case--especially one involving

domestic violence--than the type of evidence at issue

on this appeal.

We also reject defendant's claims in their entirety

that the prosecutor's summation exacerbated the

error which he says occurred by dint of the court's

decision to admit evidence of the 1983 choking

incident; and that the court's charge did not, nor could

it, adequately safeguard defendant's right to a fair

trial. First, the court correctly ruled that defendant's

objection in the form of a mistrial motion, after

App. 45

summations were completely over, was belated (see

People v_ Allende, 269 AD2d 211,lu denied95 NY2d

792:People v_ Valez, 256 AD2d 135,lu dented93_NY2d

879), and its denial of the motion was a discretionary

decision we perceive no reason to disturb. Second, if

we were to reach the merits, we would find that the

prosecutor's summation arguments on the subject,

when viewed in the complete context of his closing

statements, do not warrant reversal. Furthermore,

when they are read together with the court's

cautionary *151 charges wherein the Trial Justice

repeated and emphasized the limited value of this and

other related evidence, we firmly believe the record

belies his contention that he was denied a fair trial.

4. Medical Examiner's Testumony and Videotaped

Demonstration

Defendant contends: (1) that the Trial Justice

improperly allowed the People to adduce opinion

testimony that he was able, as a trained surgical

resident, to dismember the victim's body within 10

minutes, and also capable of packing it into a flight

bag, whether or not the body had been disarticulated;

and (2) that the court improperly permitted the jury

to watch a videotaped demonstration depicting how a

pilot can, without any assistance, load a 110-pound

body, so packaged, onto a Cessna 172 airplane, fly it

over the ocean, and discard it overboard.

The defense argues that these rulings were improper

because: (1) there was no evidentiary foundation to

justify the opinion evidence and the scenario depicted

in the video demonstration, 1.e., that they were

purportedly based on speculation; and (2) these forms

of evidence are extremely potent, inflammatory, and

App. 46

therefore they unduly prejudiced defendant in a case

like this where, according to him, there is no proof to

support the opinions or the scenario shown on tape.

We disagree.

As for the opinion testimony, the court exercised its

discretion properly by admitting the medical

examiner's expert testimony. Those opinions, contrary

to defendant's argument, did not endanger the jury's

objectivity, as the record in no way suggests that they

were delivered in anything other than a dispassionate

and brief manner. In addition, they sufficiently

related to the circumstantial evidence the People

offered, thus enabling the jury to understand medical

and surgical matters beyond their ken and better

evaluate the prosecution's theory (People v Lee, 96

NY2d 157).

(6) Regarding the videotape, defendant stated he had

“no objection” to its introduction when, on October 16,

2000, it was offered into evidence at trial. Accordingly,

this claim is unpreserved and we decline to review it

in the interest of justice (CPL 470.05 [2]; People v

Luperon, 85 NY2d 71). Furthermore, defense counsel's

earlier language on October 11, 2000 purporting to

object was premature and, in any event, legally

inadequate -to constitute an “objection” (id.).

Defendant argues that on October 11, when the

People turned over to the defense copies of the

videotaped demonstration and indicated they *152

intended to offer the videotape into evidence on

October 16, the defense uttered the following: “I

suspect we'll object.”

However, this faint expression, on its face, is nothing

more than a prediction that defendant might--or

App. 47

probably will in futuro--object to the video. Moreover,

the Justice's immediate response--“I suspect I'll allow

it”--is of no greater legal significance. It is, simply put,

not a ruling in response to an actual objection based

on then existing circumstances (see People v Luperon,

supra at 78;cf. People v Balls, 69 NY2d 641, 642).

Notwithstanding defendant's characterization of that

exchange as “wordplay,” contending now it should be

deemed a substantial legal objection, the attorney's

words do not constitute an effective protest under

CPL 470.05 (2), because the specific language would

not, nor did it, prompt the court to make an actual

ruling. While the attorneys and the court may have

intuitively suspected what was on each other's mind,

the legal process has not become, nor should it be,

guesswork, mind reading, or fortune telling. Rather, 1t

should be, and is, a process whereby trial attorneys

announce an unambiguous objection, in praesenti,

based on an articulated or otherwise known rationale

involving logic, legal principles, and/or common sense,

a protest which gives an adversary notice sufficient to

frame a_ response, and affords the court an

opportunity to issue a ruling. Defendant's so-called

“objection” contains none of these ingredients.

We therefore reject as unpreserved defendant's

present position regarding the video's admissibility,

not because we revere form over substance, but,

rather, out of our recognition of the indisputable need

during a trial for clear language announcing candid

and specific positions, after which judges may issue

fitting rulings. Most important, if there existed any

lingering ambiguity about whether defense counsel

had or had not registered a cognizable objection on

October 11, defense counsel himself resolved it on

App. 48

October 16 when he said “no objection” at the moment

the People actually offered the exhibits.

Furthermore, were we to reach the merits of the

videotape's admissibility, we would reject the defense

argument that its contents are based on pure

speculation and thus were improperly placed before

the jury. This entire case leaves no doubt whatever

that the contents of the videotape depict a scenario

that was anything but speculation. Rather, the tape's

contents clearly demonstrate the feasibility of the

People's theory of this case, a theory which all of the

circumstantial proof together overwhelmingly

shows.*153

We have examined defendant's remaining contentions

and find them unavailing.

Accordingly, the judgment of the Supreme Court, New

York County (Leslie Crocker Snyder, J.), rendered

November 29, 2000, convicting defendant, after a jury

trial, of murder in the second degree, and sentencing

him to a term of 20 years to life should be affirmed.

Andrias, J.P., Saxe, Buckley and Friedman, JJ.,

concur.

Judgment, Supreme Court, New York County,

rendered November 29, 2000, affirmed.*154

Copr. (c) 2010, Secretary of State, State of New York

N.Y.A.D.,2002.

PEOPLE v BIERENBAUM

301 A.D.2d 119

App. 49

SUPREME COURT, NEW YORK.

NEW YORK COUNTY

ee ee ear een ee X

The People of the State of New York,

V.

Robert Bierenbaum,

Defendant.

SPE Rt ss fo CE Rae ee Penn Ee X

Ruth Pickholz, J.

Defendant moves to vacate his conviction pursuant to

CPL 440.10.

The defendant stands convicted of murder in the

second degree and is currently serving a term of

twenty years to life. His conviction was unanimously

affirmed by the Appellate Division (People _v.

Bierenbaum, 301 AD2d 119). Leave to appeal to the

Court of Appeals was denied, as was his petition for a

writ of certiorari to the United States Supreme Court.

He now moves to vacate his conviction on the ground

that he was denied effective representation. As the

decision by the Appellate Division discussed the

evidence at trial at considerable length, I will only

summarize the facts here, except where a more

extensive recitation is necessary to fully understand

defendant's current claims.[FN1]

FN1. Defendant argues that the Appellate Division

decision interpreted the evidence against him more

harshly than was argued by People on appeal.

Without exception, the faults defendant finds in the

inferences drawn by the Appellate Division are

irrelevant to the issues before me.

App. 50

Defendant's jury trial took place in the fall of 2000,

approximately 15 years after the July 7, 1985

disappearance of his wife, Gail Katz. The proof at trial

that linked him to her murder was _ purely

circumstantial, Not only were there no witnesses to

the crime, but the body of Ms. Katz was never

recovered. The Appeiiate Division found that,

notwithstanding its circumstantial nature, the

evidence at trial permitted the jury to conclude

beyond a reasonable doubt that defendant had killed

his wife and disposed of the body in the manner

posited by the People. The People's theory at trial was

that, immediately after killing her, the defendant, a

surgical resident, folded or disarticulated her body

and stuffed into a large canvass duffel bag. He then

took the bag out of their East 85‘ Street apartment

and drove to the Essex County Airport in Caldwell,

New Jersey. He rented a private plane from MacDan

Aviation, put the bag on the plane, and flew the plane

over the Atlantic Ocean. After dropping the bag out of

the plane he returned and went to a family birthday

party at his sister's home in Montclair, New Jersey.

At the party he first told the story that he was to

repeat many times with minor variation thereafter.

The defendant told his father that he and Gaal had

argued in the morning and that she had left the

apartment to go to Central Park. She had not yet

returned and he was worried about her.

The police suspected early on that he had killed her.

They believed him to be the last person who had seen

her alive. Although he expressed concern for her the

App. 51

day she disappeared, it did not appear that he had

been in a special hurry to inform the police that she

had not returned from the park, as he waited until

9:00 pm the next day to file a report. The police

learned during their early investigation, which began

shortly after he reported his wife missing, that he and

his wife had an angry and difficult marriage. In 1983

she told several friends and relatives that he had

caught her smoking and had choked her to the point

of unconsciousness. This was one of several choking

incidents. One acquaintance, Lee McCullough,

observed bruises around her neck stemmung from this

incident. Ms. Katz confided in friends that she was

afraid of her husband and that he had told her that he

would kill her if she ever left him. She told a few

people in the months preceding her disappearance

that she was about ready to leave him. Investigators

also discovered that defendant was a licensed pilot,

and that he had flown a plane for an hour-and-45-

minute flight on July 7, 1985. Although he discussed

his actions on July 7 many times with friends, family

and the police, defendant never mentioned this flight.

This was far from the only instance in which he

appeared to be misdirecting the police, hindering their

efforts, diverting suspicion or simply lying about what

had happened. He told Detective O'Malley, for

example, that he had spoken with Edgar (Rivera) the

Doorman who told him that he observed Ms. Katz

leave the apartment building after 11:00 a.m. on July

7. When O'Malley later asked him about Rivera's

statement, defendant retracted his claim and said

that Edgar was not sure about the date. The police

interviewed Rivera several days later. He told them

that he had seen her on Saturday, July 6. He did not

remember seeing her on July 7.

App. 52

Despite their strong suspicions, the police had no

body, no witnesses to the act, and no forensic

evidence. Neither the apartment, the cars he had

access to nor the plane he had flown yielded evidence

of foul play. In April, 1987, after an extensive review

of the investigation, four members of the District

Attorney's Office who had been assigned to review the

case concluded that the evidence against him would

not sustain an indictment. The Office decided not to

present the case to the grand jury.

The investigation into the disappearance of

defendant's wife was dormant when, in May, 1989,a

decomposed female torso washed-up on a Staten

Island beach. The police subjected it to extensive

testing in order to determine whether it was the body

of Gall Katz. Although the experts who examined it

did not universally agree, an amended death

certificate was issued listing the torso as Gail Katz.

The cause of death was listed as homicide. Despite the

new evidence, the District Attorney's Office again

decided not to present the investigation to the grand

jury. More than a year later further testing proved

that torso was that of another woman. Aside from this

incident, there appears to have been little or no active

investigation of the case for about nine years.

In 1996 the New York County District Attorney's

Office formed a unit designed to investigate old,

unsolved homicides. In 1997 the unit turned its

attention to the disappearance of Gail Katz and

decided to reopen the case. Investigators re-

interviewed witnesses and attempted to develop new

leads. One of the 90 people whom the investigators

spoke to over the next two and one-half years was

Roberta Karnofsky, who had been dating defendant

App. 53

about the time of the original investigation and lived

in his apartment for a number of months. Karnofsky

had been uncooperative when first interviewed. She

now told them that she and Sharon Alongi, another

woman who had lived in the apartment with her and

defendant, had come upon defendant's flight log in the

apartment. They had examined it and seen that it

contained an entry for a July 8, 1985 flight. When

they examined the entry more closely they saw that it

had been altered, and that the original entry read

July 7, 1985, Investigators interviewed Alongi in May,

2000. She confirmed that the log book had been

altered. [FN2]

Among others interviewed during the reopened

investigation were four women whom defendant had

dated during the 1990's. He had given them

inconsistent versions of his wife's disappearance.

Three of the four testified in the grand jury and two of

them testified at trial as to these conversations.

Investigators also interviewed Hillard Wiese and Dr.

Michael Stone during this period. Wiese informed

them that Gail Katz had spoken to him about the

strangulation incident. Although the prosecution

team knew of the 1983 incident from their initial

investigation, they decided to seek admission of the

FN2. Although the fact that Alongi and Karnofsky

would be able to testify that they had seen the altered

entry would impact on the decision to prosecute,

prosecutors did not subpoena the log from the

defendant until after he had _ been indicted.

Consequently, the delay in obtaining an indictment

can not be excused by a need to obtain the log itself.

App. 54

hearsay statement to Wiese as an_ excited

utterance.[*N3] Investigators knew prior to 1987 that

defendant had spoken in 1983 with Stone, a

psychiatrist, concerning the strangulation incident

and about starting therapy. The therapist had also

spoken with Gail Katz about her relationship with her

husband. During the first investigation Stone resisted

the investigators' efforts to reveal the substance of

any of his consuitations. He was now willing to

provide details of these conversations, as well as a

letter he had written to Katz warning her that she

was in possible danger from her husband. The

discovery of this evidence factored into the decision to

seek the indictment underlying the instant conviction.

Defendant claims that his conviction was obtained in

violation of his rights under the New York State and

United States constitutions. In determining whether

an attorney has provided a criminal] defendant with

effective representation consonant with the

requirements of its own constitution, New York

applies a higher and more flexible standard than that

derived from the Federal Constitution ( see People v.

Benevento, 91 NY2d 708). Under the federal standard

set forth in Strickland v. Washington (466 US 668) a

defendant must establish both that the attorney's

performance was deficient, and, but for counsel's

FN3. The trial court granted the application to admit

the statement on that ground. On appeal, the

Appellate Division held that the introduction of the

statement as an excited utterance had been harmless

error, as the jury learned of the incident from other

witnesses (_ Bierenbaum, 301 AD2d at 149).

unprofessional errors, there is a “reasonable

probability” that the outcome of the proceedings

App. 55

would have been different (id at 687, 694). The Court

defined a “reasonable probability” as “a probability

sufficient to undermine confidence in the outcome” (id

at 694). In contrast, the State standard does not

require a defendant to fully satisfy the Strickland

prejudice test ( see People v. Stultz, 2 NY3d 277, 284].

Under the State Constitution the focus is on the

fairness of the proceedings as a whole ( see Benevento,

91 NY2d at 714). The core inquiry is whether the

defendant has received “meaningful representation” (

see People v. Baldi, 54 NY2d 137). “So long as the

evidence, the law, and the circumstances of a

particular case, viewed in totality and as of the time

of the representation, reveal that the attorney

provided meaningful representation, the

constitutional requirement will have been met’ (id at

146-147). Trial tactics which terminate unsuccessfully

do not automatically indicate ineffectiveness (id_at

146-147), nor does the failure to make any particular

motion ( see Stultz, 2 NY3d at 287). Under the Baldi,

“meaningful representation” standard a defendant

must show that there was no “strategic or other

legitimate explanation” for defense counsel's allegedly

deficient conduct ( see People v. Rivera, 71 NY2d 705,

709).

Although it is not an indispensable aspect of the Baldi

standard, prejudice is still a “significant... element in

assessing meaningful representation” (Stultz, 2 NY3d

d at 284), A single error may constitute ineffective

assistance under the State standard, but only when it

is “sufficiently egregious and prejudicial as_ to

compromise a defendant's right to a fair trial” [People

uv. Hobot, 84 NY2d 1021, 1022). On the other hand,

“even in the absence of a reasonable probability of a

different outcome, inadequacy of counsel will still

App. 56

warrant reversal whenever a defendant is deprived of

a fair trial” [People v. Caban, 5 NY3d 143).

Defendant raises numerous arguments in support of

his contention that his attorneys were ineffective. He

argues that the attorneys'FN4] lapses began even

before trial began when they failed to move to dismiss

the indictment on the ground of excessive pre-

indictment delay (see People v. Singer, 44 NY2d 241).

His argument is as follows: The People did not indict

him until 1999, more than fourteen years after Gail

Katz disappeared. Their delay in bringing an

indictment was unjustifiable, as, he contends, they

did not have appreciably more evidence against him

in 1999 than they had a decade or more earlier. To the

extent that they uncovered more evidence during this

period, it was either cumulative or of minimal value.

If they developed any new evidence of value during

this period, it could have been discovered before the

initial investigation was abandoned, or it came to

hght after the defendant was indicted in 1999.

Moreover, he continues, he was prejudiced by the

passage of so many years. Fourteen years after the

event the defense could not easily check the ancient

FN4. The defendant was represented by Scott

Greenfield, Esq., who was primarily responsibie for

pre-trial motions, David L. Lewis, Esq., who had

responsibility for conducting the trial, and Kathryn

Kase, Esq. Mr. Greenfield was also one of two

attorneys who represented the defendant upon his

direct appeal

reports upon which the People relied, or cross-

examine the dimmed memories of their witnesses. He

argues that he was prejudiced because he was unable

App. 57

to cross-examine several other witnesses who no

longer remembered what they had said to the police

and whose statements to investigators were therefore

admitted into evidence as past recollections recorded.

Additionally, some of the people who might have

contradicted or given doubt to the prosecution's

evidence no longer remembered the events of July

1985. Others, such as the Bierenbaum's housekeeper

and the person who was in the office of MacDan

Aviation when defendant rented the plane for his July

7, 1985 flight, were no longer available to testify in

2000. Had they still been available to testify at trial,

he urges, they would have remembered specific

details that would have been favorable to his case. In

view of the People's unjustifiable delay in indicting

the case, the great length of the delay and the

prejudice suffered by the defense, a motion to dismiss

on the ground of pre-indictment delay would have

been granted.

The argument that defendant's attorneys were

ineffective for failing to move to dismiss on the ground

of unjustifiable pre-indictment delay is meritless, as

there is no possibility that such a motion would have

been granted. It is irrelevant that, as defendant

argues, trial counsel “had nothing to lose” by making

such a motion. In order to show that his attorney was

ineffective, a defendant must show that he had some

likelihood of prevailing on the motion that he

contends should have been made. “A defendant is not

denied effective assistance of trial counsel merely

because counsel does not make a motion or argument

that has little or no chance of success” (see People _v,

Stultz, 2 NY3d 277, 287; see People v, Berry, 15 AD3d

233). There was no chance of success in this case.

App. 58

An unreasonable delay in prosecuting a defendant

may constitute a denial of due process requiring

dismissal of the charges against him ( see People uv.

Staley, 41 NY2d 789, 791: Singer, 44 NY2d at 253)

Five factors must be considered in determining

whether a delay amounts to a denial of due process:

the seriousness of the offense, the length of the delay,

the reason for the delay, the degree that the defense

has been impaired or prejudiced and the length of any

pre-trial incarceration ( see, People v. Taranovich, 37

NY2d 442: People v. Bonsauger, 91 AD2d 1001). In

this case only the extreme length of the delay weighs

in defendant's favor (cf. People v. Vernace, 96 NY2d

886 [17-year delay]; People v, La Rocca, 172 AD2d 628

[17-year delay]). Contrary to defendant's argument,

he was not meaningfully prejudiced by the delay.

For the most part, defendant's specific claims of

prejudice accruing from memory decay and the

unavauability of witnesses do not withstand analysis.

To be sure, the memories of all the witnesses had

decayed with time, but that is always the case and

does not prove undue prejudice to the defense ( see

People v. Lee, 234 AD2d 140, 143). Moreover, all the

witnesses but one were prosecution witnesses. It is

the People who bear the burden of proof, and for the

most part they, not the defense, are prejudiced when

the memories of prosecution witnesses are made hazy

by the passage of time because their burden is made

more difficult (see People v. Varnace, 96 NY2d at 888).

Indeed, trial counsel argued this very point when, at

the very beginning of the defense summation, he

warned the jury that it was dangerous to rely upon

“the chancy elements of the temperamental] nature” of

memories that were fifteen years old.

App. 59

Many of defendant's arguments are founded upon

unwarranted assumptions. There is no reason to

assume that, had the trial taken place earlier, either

the witnesses who testified for the prosecution or

those who were unavailable in 2000 would have

recalled facts that were helpful to the defense, rather

than facts that were simply more damning. Also

unpersuasive is the related argument that, were it not

for the passage of so much time, trial counsel could

have more easily refuted the testimony of many of the

People's witnesses by checking their memories of

events against records or documents that surely

existed earlier but were no longer extant in 2000. It is

mere conjecture that the employment and other

records that defendant mentions would have

contained information helpful to the defense.

Defendant complains, for example, that trial counsel

was unable to effectively cross-examine Denise

Kastenbaum. Kastenbaum testified that at a July 6

meeting at the hairdresser, Katz told her that she was

going to tell her husband that very weekend that she

intended to leave him. Defendant contends that Mr.

Lewis was stymied in his ability to cross-examine her

on this point because after so many years the

hairdresser's appointment book and the _ salon's

employee records had been discarded. He suggests

that these documents might have shown that the

appointment took place on aé_e different day.

Alternatively, phone records no longer existed in 1999

which might have shown that the two did not speak

on or about June 6 and therefore did not arrange to

have their hair done on the same day. These

speculations, as well as many others in which

defendant engages, are unfounded. A similar analysis

applies to the case folder of Detective Dalsass, which

was lost in 1991. Dalsass testified that the defendant

App. 60

did not return his phone calls during the early

investigation. Defendant argues that, had the trial

taken place prior to 1991, he might have been in a

position to test the detective's statement that he failed

to return the phone messages.!FN5] In neither of these

cases nor others like them has defendant shown that

he suffered actual prejudice.

The contention that prejudice accrued to defendant

because of the introduction of a number of statements

as past recollections recorded is conjectural. It is

impossible to know what witnesses such as Lee

McCullough, Edgar Rivera and Ellen Schwartz would

have testified had they remembered the interviews

that had given to the police. To assume that their

testimony would have been more favorable to the

defense than the statements that they gave

investigators within a week or two of the

disappearance , or that they would have contradicted

their accounts of years before, is entirely speculative.

Defendant contends that he was severely prejudiced

by the testimony of Maryanne DeCesare, who testified

that Gail Katz told her that defendant repeatedly

warned her that if she left him, he would kill her.

According to, DeCesare, Katz once stated that during

a television broadcast of a movie about Klaus Von

FN5. Furthermore, defendant could have moved for

an adverse inference as to the loss of the book had he

believed it in his strategic interest to do so.

Bulow, defendant told her that “the problem with

Klaus Von Bulow is that he had left evidence and that

he [defendant] would not leave evidence.” Defendant

argues that, as the body of his wife was never found,

App. 61

this testimony was especially powerful. In 2001

researchers hired by defendant's current attorneys

concluded after two weeks of exhaustive research that

“Reversal of Fortune,” was the only movie made about

the Von Bulow case and that it was released in 1990,

five years after Katz's disappearance.!FN6] Defendant

argues that, had so much time not passed, it would

have been possible to rebut Ms. DeCesare about her

apparently confabulated and erroneous testimony.

The difficulty in meeting such testimony fifteen years

after the event, he continues, “where it arises for the

first time during the heat of trial, is immense.”

Defendant's argument is not compelling. It is unclear

why it was any more difficult to meet such testimony

in 2000 than it would have been a decade earlier.

Assuming for the sake of argument that two weeks of

extensive research are required to verify that there

was only one movie that was based on the Von Bulow

case and to ascertain its release date, those same two

weeks would have been needed regardless of the date

of the trial. The pressures inherent in meeting

testimony in the heat of trial would also have been the

same. The defense would therefore have confronted

the same difficulty of rebutting Ms. Decasare's

FN6. The People assert that, even if that is the case,

there were numerous televised news reports about the

Von Bulow case that could have triggered defendant's

comment to his wife, testimony no matter when the

trial took place [FN7)

Defendant claims that he suffered prejudice from the

faded memory of Joel Davis, the sole defense witness.

Davis testified that he had seen a missing-person

poster of Gall Katz shortly after her disappearance

App. 62

and had told the police that he had seen the woman

pictured standing in line in a bagel store at 3:00 pm

on July 7. The woman was standing near another

female who was apparently her friend. Both were

carrying beach bags. The police showed him a picture

of Katz in late September, 1985. He identified the

photograph as one of the two woman he had seen on

July 7. Defense investigators interviewed him several

months prior to trial, and the details he related to

them were inconsistent with what he told the police

years earlier and what he related in his direct

examination. The People took advantage of these

inconsistencies in cross-examination. Davis

nevertheless testified that he was certain that the

photograph of the woman he was shown in 1985, and

which he was shown again at trial, depicted one of the

women he had seen on July 7. A reading of his

testimony leads to the conclusion that although he

was certain in 1985 that he had seen Gail Katz in the

bagel store, he no longer remembered enough about

FN7. It is impossible to assume anything about the

substance of Ms. DeCesare's testimony had it given

before the movie was released. There is no reason to

believe, however, that it would have been any more

favorable to the defense.

the sighting to be sure. Although Davis exhibited

some confusion about the events of 1985, the

defendant was not substantially prejudiced. Not only

was Davis unshaken about his 1985 identification, but

it is unlikely that the jury expected any witness to be

as certain in 1999 about the events of 1985 as that

witness was in the months immediately following the

event. They probably found, as does defendant, that

“since Davis ... [testified] completely from memory

App. 63

about a sighting that occurred 15 years before, it

[was] not surprising that he was inconsistent on

certain details.” If the jury discounted his testimony,

it was primarily because 1t was simply improbable

and contrary to established facts.

I find the other instances of prejudice alleged by

defendant to be completely meritless. They are

premised upon the most speculative of premises (e.g.,

that Janice Nuhic, a police aide who prepared the

1983 complaint report in which Gail Katz reported

that defendant had strangled her to the point of

unconsciousness, would have remembered taking the

complaint from Ms. Katz had the trial taken place

earlier). Even if defendant could have demonstrated

that he suffered prejudice from the faded memories of

witnesses, however, his dismissal motion would not

have been granted.

Dismissal is not warranted where there is good cause

for the delay (_People v. Lesiuk, 81 NY2d 485, 490-

491). The legitimate need of the police to gather

sufficient evidence prior to the commencement of an

investigation constitutes good cause (Lesiwk, 81 NY¥2d

at 490). “Thus a determination made in good faith to

defer commencement of the prosecution for further

investigation or for other sufficient reasons, will not

deprive the defendant of due process of law even

though the delay may cause some prejudice to the

defense” (Singer, 44 NY2d at 254).

The decision not to seek an indictment in 1987 can not

be gainsaid. Not only was the evidence against the

defendant purely circumstantial, but no homicide

prosecution had ever been attempted in New York

County to that time where there was no corpus dilecti.

App. 64

Prosecutors knew that the jury would be instructed

that they could only convict if the facts proved

excluded, to a moral certainty, every reasonable

hypothesis of innocence. It would have been foolhardy

for them to proceed in the absence of evidence that did

not satisfy this standard. Their 1987 decision not to

prosecute was based on objective assessment of the

evidence and was therefore made in good faith.

It is irrelevant that there was little or no active

investigation of the case for ten years ( see People v.

Vernace, 96 NY2d 886). The People were not obligated

to keep the case active during this period, as it would

be impossible for them to continually investigate

every case. Their determination to reopen the case in

a fresh attempt to gather sufficient evidence to obtain

a conviction was made in good faith and does not cast

their 1987 decision to defer prosecution into doubt.

Defendant contends that much of the evidence that

the People developed during the _ reopened

investigation was either cumulative of information

that was known to them in 1987 or could have been

discovered during the initial investigation. I disagree.

Even if this were the case, however, it is immaterial.

The decision to prosecute, like the determination of

what constitutes sufficient evidence to obtain a

conviction, is a_ discretionary and_ subjective

prosecutorial function (see People v. Denis, 276 AD2d

237). Indeed, had the People simply indicted

defendant in 1999 based on evidence that was

substantially the same as the evidence in their

possession in 1987, it 1s far from clear that the delay

would have been unjustified in a case as unusual and

difficult as this one ( see People v. Denis, 276 AD2d

237). Additionally, there is no reason to believe that

the prosecution's decision to reopen the case after ten

App. 65

years proceeded from inappropriate motives ( cf.

People v. Juan Rodriguez, __ Misc 2d _, NYLJ

8/9/04). The People's further display of caution in

1997, deferring indictment until they determined that

the evidence was strong enough to meet the

circumstantial evidence standard, was also

warranted.

That they ultimately did not or could not use all of the

evidence discovered during the second investigation

does not mean that the People unnecessarily delayed

bringing an indictment or were not investigating in

good faith. They attempted to introduce the testimony

of Dr. Stone as well as various psychiatric records at

trial, for example, but the defense successfully argued

that this evidence was inadmissible. Some of the other

evidence that they did not use suggested other leads,

confirmed suspicions or other evidence, and factored

into their decision to pursue an indictment. In

addition, there was delay incurred while the People

pursued leads that ultimately proved to be useless.

Extensive scientific testing was performed on the

torso discovered in Staten Island until it was

definitively shown that it could not have belonged to

Gail Katz. Accordingly, it 1s impossible to say that the

People did not have good cause for the delay that

occurred in this case ( see People v. Mitchell, 301 AD2d

451).

In sum, although the pre-indictment delay was

significant, defendant was not incarcerated at any

time prior to trial. If he can be said to have suffered

any prejudice from the delay, it was not substantial.

Both the seriousness of the charge and the reason for

the delay strongly militate against dismissal. The

People proceeded in good faith and did not delay the

App. 66

prosecution in the hope of gaining a tactical

advantage. Their caution was justified by the

complete lack of direct evidence against the

defendant, as well as the absence of direct proof that

Gail Katz was dead. For these reasons there is no

possibility that a motion to dismiss on the basis of

pre-indictment delay would have been granted.

Defense counsel cannot be faulted, therefore, for not

filing such a motion ( see People v. Mance, 269 AD2d

188).

Defendant next takes exception to his attorneys'

failure to interview and call The Bierenbaum's

downstairs neighbor, June Sherman, and failure to

call Pablo Alvarez, a building maintenance worker

and occasional doorman. The police interviewed

Sherman in June and October 1986. At that time the

only relevant information that she was able to provide

was that the Bierenbaums fought constantly. In 1998,

when the case was reopened, an investigator spoke to

her again. On this occasion she stated that the

Bierenbaums always fought on Sunday and that she

frequently heard Ms. Katz screaming and the sound of

banging furniture, she usually heard the sound of

heels and of furniture being moved. On the Sunday of

the disappearance she heard the defendant yelling

and his wife screaming, She heard a loud bang, which

she assumed was the front door but which could have

been any door, and then silence, The lead prosecutor

also interviewed her in February 2000, at which time

she gave additional details about the incident.

The People provided the defense with the

investigator's report of his interview with Ms.

Sherman six months prior to trial in response to a

request for Brady material. The report was by then

App. 67

two years old. Ms. Sherman had moved to Arizona,

but the People gave the attorneys her Arizona address

and telephone number. Trial counsel did not attempt

to interview her or otherwise act on this information

until October 2, 2000,N8] when they applied for an

order to secure her attendance at trial pursuant to

CPL 640.10. Attempts to serve her with process in

Arizona proved unsuccessful and she never testified.

The defendant has appended a July 2004 affidavit

from Sherman in support of his current motion. [In it

she states that she heard Ms. Katz screaming on the

day of her disappearance and that she (Sherman)

heard the sound of high heels making noises on the

floor of the Bierenbaum apartment. She heard the

door of the apartment slam followed by silence. Based

upon her familiarity with Ms. Katz's voice and

footsteps, she believed that Katz left the apartment.

Pablo Alvarez was employed as a maintenance worker

in the Bierenbaum's apartment building. Nine days

FN8. The trial had commenced by this time. The

People opened on October 2 and rested on October 18.

Judge Snyder charged the jury on October 23.

After the disappearance Alvarez told Detective

O'Malley that he did not remember seeing Ms. Katz

leave the building on Sunday, July 7. He was again

interviewed by the prosecution in 1999 and 2000. On

both occasions he remembered neither the day or date

that he had last seen her leave the building nor how

she was dressed that day. In a July, 2004 affidavit he

states that on the Sunday _ preceding’ the

disappearance he relieved Edgar Rivera, the doorman,

at 11:30 a.m. While on duty that day he saw Ms. Katz

App. 68

leave the front entrance of the building wearing

shorts and a t-shirt. He did not see her return. He

also states that he provided this information to the

defense in 2000. [FN9]

Mr. Lewis and Mr. Greenfield interviewed Alvarez

prior to trial but decided not to call him to testify.

Both attorneys now state in substance that they

would have made the opposite decision had records

existed at the time of the trial showing that both

Rivera and Alvarez had worked July 7, 1985, and had

they known that Ms. Sherman would have testified

consonant with the affidavit she provided several

years after the trial.

FN9. Alvarez additionally states that he testified

before the grand jury but the People dispute this

claim. I conclude that he innocently believed his 1999

interview with several assistant district attorneys to

be a grand jury appearance. I reject the People's

argument that his misconception casts the remainder

of his affidavit into doubt.

The defendant argues that, had both Sherman and

Alvarez testified, he would almost certainly have been

acquitted. He contends that Sherman's account would

have supported the defense theory that Ms. Katz left

the apartment on Sunday afternoon and would have

made the testimony of Joe] Davis more credible. In his

view their combined testimony would have made

untenable the prosecution's central theory that the

defendant killed his wife in the apartment on July 7

in the course of a violent argument. He also argues

that their testimony would have undercut inferences

that circumstantially strengthened the People's case.

He suggests, for example, that had Alvarez testified,

App. 69

trial counsel might have “put into play” the notion

that defendant had confused Alvarez with the

doorman Rivera when he told Detective O'Malley that

Rivera had seen his wife leave the building on Sunday

morning. If so, the prosecution would not have been

able to argue that defendant evinced consciousness of

guilt in lying to Detective O'Malley about his

conversation with Rivera.

Although it would have been prudent to speak with

Ms. Sherman at an earlier date, the defense made

diligent efforts to secure her attendance as soon as the

trial actually began. The People's case lasted more

than two weeks, and 1t would have been reasonable to

believe that she would be available in time to be

interviewed and, if she proved to be a friendly

witness, testify. That the efforts of defense counsel

proved unavailing is not an_ indication’ of

ineffectiveness. People v. Donovan (184 AD2d 654),

upon which defendant relies for the contrary

proposition, is inapposite. Morever, their decision not

to rush to interview her can be explained by the fact

that they already knew what she had told the

prosecution's investigator, and considered her an

unfriendly witness.[FN10) Whether or not’ their

assessment of her hostility was correct, had she

testified, 1t is as likely that her testimony would have

hurt the defense as aided it. Not only was her account

of the click of heels followed by the slam of a door

completely inconsistent with defendant's statements

to the police that his wife was wearing sandals when

she left the apartment, but she told investigators that

she only believed that it was the front door that she

heard slam and that it could have been any door. If

the jury believed that she had heard the sounds of

“Gail screaming and Robert yelling”, followed by the

App. 70

slam of an interior door and sudden silence, it would

have undermined the scenario suggested by the

defense and strengthened the prosecution's theory

that the defendant had killed her in the apartment.

At the very least her report of the Bierenbaum's

incessant cat-and-dog fights and her account of the

screams and yelling she heard that morning would

have been harmful to the defense. I also note that Ms.

Sherman's inability to provide investigators with any

relevant information about the day of the

disappearance immediately after the event but ever-

improving recall of detail as the years have would also

have presented problems for the defense. Had she

FN10. In his affidavit, Mr. Greenfield states that he

and Mr. Lewis assumed that Ms. Sherman “was not a

friendly witness,” as she never made an attempt to

contact them.

testified it would have been especially difficult for Mr.

Lewis to employ the argument he made in summation

that 1t was dangerous to rely upon recent memories of

ancient events. Trial counsel were therefore not

ineffective for failing to obtain her testimony ( see

People v. Llanos, 13 AD3d 76: People v. Brooks, 283

AD2d 367).

Calling Alvarez would also have been problematic as

he had repeatedly said that he did not remember

seeing Ms. Katz leave the building on Sunday and

could not recall what she was wearing that last time

he had seen her. Trial counsel made a strategic

decision not to call him in the absence of credible

evidence buttressing the claims he had recently made

to them to the contrary. If he told the jury that he

recalled seeing her leave the building that day

App. 7]

wearing shorts and a t-shirt, as he told the defense in

2000, the prosecution would have discredited him

with inconsistent statements he made as far back as

1985 and as recently as 2000. Defendant concedes

that Alvarez's recollection was “shaky.” He attempts

to brush the inconsistencies in his several accounts

aside with the claim that calling Alvarez to testify

would nevertheless have permitted him to blunt the

People's argument in summation that he (defendant)

lied to Detective O'Malley about Edgar the doorman's

sighting of his wife. According to defendant, had

Alvarez testified it would have been persuasive

evidence that Dr. Bierenbaum had not lied to

O'Malley at all, but had truly been mistaken whether

it had been Edgar Rivera, Edgar Acosta - - a porter - -

or Pablo Alvarez whom he had spoken to and whether

that individual, whoever it was, said what he had

personally seen and when he saw it or what one of the

others had told Alvarez he saw and when.

This argument is based upon a jumble of baseless

speculations. Defendant provides no support for the

possibility that someone other that Alvarez, “whoever

it was,” saw defendant's wife leave the building on

July 7 and told either Alvarez or defendant what he

had seen. Defendant and Rivera never made such a

claim. Alvarez clearly states that he personally saw

Ms. Katz leave the front of the building wearing

shorts and a t-shirt. Defendant provides no affidavit

from Acosta, the only remaining possibility. It is

highly unlikely that the jury would have accepted

defendant's premise had he managed to “put it into

play.” Furthermore, had the jury indeed accepted the

speculation, it would not have altered the outcome of

the trial. Not only was defendant's remark to

O'Malley only one of many omissions’ and

App. 72

misstatements but it pertained solely to consciousnes:

of guilt.

Defendant also contends that he was prejudiced by

numerous lapses and errors of judgment on the part of

Mr. Lewis during the trial. The People preliminarily

argue that the trial record contains sufficient facts to

have permitted appellate review of defendant's claims

and that he should therefore be precluded from

raising them now (CPL 440.10 [2][c]). As I reject their

argument I will address the alleged errors on the

merits (see People v. Brown, 45 NY2d 852: People v.

Berry: 15 AD3d 233: People v. Harris, 109 AD2d 351).

Defendant alleges that he was prejudiced by the

attorney's concession in his opening to the jury that

Gail Katz was dead and that she had died on July 7,

1985.[FNi0 He argues that there was nothing to be

gained by conceding that she was dead, as one or

more jurors might have found that the People had not

satisfied their burden of proving this element beyond

a reasonable doubt. Conceding that she had died on

July 7 was even worse, he continues, because it raised

the possibility that the attorney knew this

information because his client had confided it to

him.[FN12] Defendant also argues that it gained

nothing for his attorney to concede during the

summation that he had once choked his wife and that

he had a bad temper. He contends that the evidence of

defendant's bad temper and the choking incident

came from statements that Ms. Katz made to

acquaintances, and could thus __ have _ been

exaggerations or even fabrications. He adds that,

although there might be reasons not to contest some

or all of these issues, there was no reason to actively

concede them.

App. 73

FN11. He also stated in his summation that she was

dead, but made no mention of her dying on July 7.

FN 12. In an affidavit appended to defendant's motion,

the attorney states that he made a strategic decision

to concede these facts because he believed that “this

would prevent the People from eliciting testimony

from her family and friends in the nature of the

impact of the victim's death on her family and

friends.”

Defendant was not prejudiced by his attorneys'

concession that Ms. Katz was dead, as the proof

presented permitted no other inference. Had they not

made the tactical choice of defusing the issue in this

manner they would have been put in the counter-

productive and almost ludicrous position of arguing

that she had vanished without a trace but was still

alive fifteen years later. There was also sufficient

proof in the record to have made it impossible for the

attorney to have contested the choking incident and

defendant's bad temper. The jury heard too many

corroborative accounts to have had any doubts as to

these facts and conceding them was therefore not

prejudicial. Additionally, as is clear from the

affidavits of trial counsel, Mr. Lewis made a strategic

decision to concede them based on his assessment that

they were necessary to show why the Bierenbaums

sought counseling. His decision should not be second-

guessed with the wisdom of hindsight (see People v.

Satterfield, 66 NY2d 796,799; People v. Sullivan, 153

AD2d 223,227). Conceding that Ms, Katz died on July

7 was more questionable. Although concessions that

are based upon a valid trial strategy cannot form the

basis for a determination that an attorney was

ineffective (see People v. Lewis, 13 AD3d_ 1171), the

App. 74

logic underlying trial counsel's explanation for this

concession is somewhat tenuous. If the concession was

indeed unnecessary, the circumstances surrounding

the disappearance of Ms. Katz as well as other

evidence in the case nevertheless compel the

conclusion that she indeed died on July 7.

Defendant faults Mr. Lewis for stating in his opening

to the jury that “the police conducted a forensic

examination of the doctor's apartment [as well as the

cars he used and the airplane he had flown on July 7]

and found no evidence of blood or any other

biological determinations” that supported the People's

theory of the case. Defendant claims that, but for this

remark, he would not have been prejudiced by

testimony which permitted the prosecutor to argue

that he had prevented the police from uncovering

inculpatory evidence. Judge Snyder subsequently

ruled that the attorney's statement had opened the

door to testimony that defendant had ignored or

forestalled several requests from Detective Dalsass to

search the apartment. The detective was also

permitted to testify that after defendant finally

consented to a search conducted in September, 1985,

his attorney, Mr. Greenfield, limited it to a search for

Ms. Katz's fingerprints, diary and address book. He

further testified that crime-scene technicians were

prevented from conducting a full search of the

apartment and that he [Dalsass] was followed

everywhere about the apartment but the bathroom by

an investigator hired by the defendant. Judge Snyder

also permitted the prosecutor to argue in his

summation that defendant had led 1n stating to his

girlfriend, Karen Caruana,![FN13) that the police

searched his apartment and found nothing. He then

stated:

App. 75

[The] cops hadn't searched anything yet. One of the

main reasons is because the defendant wouldn't let

them search the apartment. The defendant and his

FN13. The defendant began a romantic haison with

Caruana within several weeks of his’ wife's

disappearance.

attorney stopped the cops from doing a complete

forensic search on the apartment. Ladies and

gentlemen, eyeballing the bathtub and walking

around the apartment are no substitute for a complete

forensic search .... In the affirmation appended to the

instant motion, Mr. Lewis states that his statement to

the jury that the police had searched the apartment

but found no blood or biological evidence was based on

his “understanding of what occurred during the police

investigation of Ms. Bierenbaum's disappearance.”

Defendant notes, however, that the People had

previously informed him that the Mr. Greenfield had

prevented the police from police from conducting a full

search. In a proceeding that took place two months

before the start of the trial, the People unequivocally

stated in colloquy that “there were no extensive tests

done. Mr. Greenfield wouldn't allow it. The only thing

that Mr. Greenfield would allow [was for the police] to

come in and dust for prints.”

Defendant was not prejudiced by the introduction of

the testimony because the People's discussion of the

search, when viewed in the context of their entire

summation, was of very lmited effect. They never

argued that the defendant or Mr. Greenfield refused

to permit the police to conduct full search because he

had something to hide, or because he was guilty.

Rather, they utilized the search to show that he had

App. 76

lied to Caruana, as he had lied to her about other

things and had lied to many other people, in order “to

deceive, to cast suspicion elsewhere, or to remove it if

it [was] cast on him.” As the le to Caruana about the

search only one of many to which they referred, it did

not play a prominent part in their summation.

Moreover, the lie was relevant only as to defendant's

consciousness of guilt.

Additionally, Mr. Lewis's cross-examination of

Detective Dalsass dissipated any prejudice that his

client otherwise might have suffered from the

introduction of the detective's direct testimony. He

first elicited testimony showing that defendant was

slow to consent to a search of his apartment because

he wanted to consult an attorney. He then elicited

from the detective that the defendant consented to the

search, and that it was only Mr. Greenfield who

imposed limitations on it:

Question: On the 12% did he [defendant] give you

verbal pérmission to search his apartment for forensic

evidence?

Answer: Mr. Greenfield did,

Question: Did Dr. Bierenbaum give you permission?

Answer: Yes, he did.

Question: To search the apartment for forensic

evidence, right?

Answer: Correct, but there were stipulations made at

that time.

App. 77

Question: This was on the 12‘ there was a stipulation

made, or later?

Answer: On the 30*4.

Question: So on the 12th Dr. Bierenbaum gave you

permission to search?

Answer: He did.

Question: And it was only later when you went to the

apartment, that Mr. Greenfield stopped you from

doing the search that you wanted to do, right?

Answer: That is correct.

Question: And despite the fact that, you tried to

continue to do it anyway, right, somewhat - -

Answer: As best as I could.

Mr. Lewis thus contrasted defendant's willingness to

permit the search with Mr. Greenfield's refusal. In

laying the blame for the inability of the police to

conduct a full search to an attorney, who could be

expected to be an_ obstructionist under any

circumstances, Mr. Lewis dispelled the notion that the

defendant felt a consciousness of guilt. Judge Snyder

instructed the jury at the close of the case that “the

defendant has no legal obligation to allow the police to

search his apartment at any point .... I want to

remind you that every individual has a right to an

attorney and you can draw no negative inference from

the fact that someone hires an attorney.” Mr. Lewis's

cross-examination, in conjunction with the court's

instruction, ameliorated any remaining prejudice

App. 78

which may have accrued to the defendant from the

opening remark.

Defendant next accuses Mr. Lewis of failing to utilize

impeachment material which, he claims, would have

supported his argument in summation that Ms. Katz

was killed in a drug deal gone awry in Central Park.

The genesis of this argument primarily lay in the

testimony of Stephanie Youngblood and Anthony

Segalas. Youngblood, who lived with the defendant in

1990, testified that he told her that his wife had a

drug problem. He expressed his belief to her that his

wife had left the apartment to “hang out with her

druggie friends” in Central Park, where she had

probably been murdered. Segalas carried on an affair

with Ms. Katz during the last few years of her

marriage. He testified that he and Ms. Katz twice “did

cocaine” together. On one of the two occasions she told

him that she suspected that she had been cheated by

a girlfriend who had supplied her with the drug and

asked him to come over to verify that the substance

she purchased was cocaine. Segalas also testified that

he was a recreational cocaine user but that Ms. Katz

was very naive and didn't appear to know anything

about the drug.

On the basis of this testimony (and evidence that Ms.

Katz had an unconsummated relationship with

Kenneth Feiner, a psychologist whom she met on the

subway in 1985) Mr. Lewis argued in summation that

Ms. Katz was prone to engage in dangerous behavior.

He raised the possibility that she was killed by drug

dealers in the course of a drug deal in the dangerous

Central Park that existed “before-Giuliam.” The

People scoffed at this argument in their summation

and knocked down each of its underpinnings in turn.

App. 79

They argued that the men with whom she sought

relationships were not risky types, but a Ph.D. and an

investment manager. Far from being someone with a

drug problem, Ms. Katz was, according to Segalas, a

neophyte, naive when it came to cocaine, She was

supplied not by drug dealers in Central Park, but by

her girlfriend. There was only defendant's say-so that

she had “druggie friends.” They derided his statement

to Youngblood as an attempt to cast suspicion

elsewhere.

Defendant now argues that Mr. Lewis showed a lapse

in professional judgment in failing to cross-examine

Segalas with his 1985 statement to Detective Dalsass

that he and Ms. Katz “did cocaine on numerous

occasions.” He contends that, had the attorney cross-

examined Segalas with the statement, it would have

been more difficult for the prosecution to disparage

the possibility that the death of Ms. Katz was related

to her drug use. In addition, the statement would

have made it more credible that defendant believed

that his wife died as a result of her involvement with

unsavory acquaintances who were involved with

drugs. In his affidavit, Mr. Lewis states that he did

not see the necessity of cross-examining Segalas with

the inconsistency. I find that there would have been

little utility in doing so.

Had the jury credited that Segalas and Ms. Katz took

cocaine together on numerous occasions, instead. of

just twice, it would not have made the theory that her

death was somehow related to her drug use

significantly more viable. The theory was constructed

of gossamer and did not withstand scrutiny. The fact

remains, whether it heard that Ms. Katz took cocaine

twice or twenty times, the jury was presented with no

App. 80

proof of dangerous drug suppliers in Central Park, but

only an apparently innocuous “girlfriend.” Ms. Katz

did not seem to be the type of person who associated

with people who were the least bit shady. None of the

parade of her friends and acquaintances who testified,

even the few like Segalas and Feiner who had

questionable morals, appeared to be of that ilk. It was

hard to believe that she would seek out someone with

the potential to do her harm.

Similarly, it is unlikely that confronting Segalas with

his inconsistent statement would have countered the

inference that defendant was merely attempting to

cast suspicion elsewhere with his statement to

Youngblood. The problem is not only that there was

no proof that the death of Ms. Katz was related to her

drug use, but that the defendant expressed so many

different theories about her death that it is difficult to

credit that he was sincere or had a basis to believe

any one of them. As the Appellate Division noted,

[h]e was inconsistent about his purported knowledge

of his wife's post-July 7 whereabouts, alluding to

different theories and purported sightings to different

people. Defendant variously suggested or stated that

his wife was wandering around Central Park in “a

fugue state,” that she had a drug problem and ran off

with drug dealers, that she possibly committed

suicide, that she was on a shopping spree at

Bloomingdale's, that she left to hang out with

“druggie friends,” that she might have been killed by

drug dealers, and that she had left for the Carribean

to be with a boyfriend. In one instance he falsely

claimed that a private detective, whom he also

claimed he hired to find her, learned she was living in

California with financial support from her family. Not

App. 81

a single shred of evidence in this record supports any

of these bizarre claims. Bierenbaum, 301 AD2d at 136

The sheer number and variety of these explanations

leads to the inference that they were nothing more

than fabrications that defendant devised to allay

suspicions about himself. Again, the same conclusion

is drawn whether Segalas and Ms. Katz used cocaine

together only twice or numerous times. As the 1985

statement would therefore not have had any impact

on the jury's acceptance of the drug theory, or

countered the inference that defendant manufactured

the theory to remove suspicion from himself, trial

counsel's failure to utilize it did not constitute

ineffectiveness of counsel ( see People v. Myers, 283

AD2d 259).

Defendant asserts that trial counsel was ineffective

for failing to object to the introduction of three

videotapes demonstrating how a single person could

load a 110 bag of sand onto a Cessna 172 (the make

and model of the plane flown by defendant on July 7),

pilot the plane and drop the bag into the ocean. This

contention is without merit, as the Appellate Division

indicated by way of dictum that the videotapes were

properly placed before the jury (see People ov.

Bierenbaum, 301 AD2d 119, 152). As the evidence in

question was admissible, the attorney was not

ineffective in failing to object to its introduction ( see

People v. Wigfall, 288 AD2d 41; People v. Smith, 278

AD2d 154).

Defendant's many claims about trial counsel's failure

to object to various parts of the People's summation

are similarly without merit. Mr. Lewis explains in his

affidavit that he was wary of objecting during the

App. 82

summation because he was afraid that if he did, the

court would sum up on these points in aid of the

prosecution.[FN14] He instead chose to move for a

mistrial on three of these grounds at the end of the

summation. Trial counsel's strategic decision not to

make contemporaneous objections because they were

not worth the risk that they entailed was a legitimate

one (see People v. Taylor, 1 NY3d 174, 177). Defendant

argues that, to the extent that the reason for his

attorney's failure to object was based on such a

consideration, CPL 470.05, which required him to

object in order to preserve an issue for appellate

review, conflicts with his state and federal right to

effective counsel. Defendant cites no authority which

directly supports this proposition and I reject it.

Assuming, for the sake of argument, that trial

counsel's concern did not constitute a valid tactical

consideration, he was still not ineffective for failing to

make timely objections during the prosecutor's

FN14. When he moved for a mistrial at the close of

summations Mr. Lewis gave the trial court a different

explanation for his conduct. At that time he explained

that he was afraid that if he had objected to during

the People's summation, he would have invited

additional attention to the prosecutor's arguments.

Judge Snyder found his explanation “disingenuous.”

Although there was likely some truth to counsel's

explanation, the primary reason for his reluctance

was undoubtedly the fear expressed in Mr. Lewis's

affidavit, which could not easily have been stated to

the trial court, Whether his decision was based on the

first consideration, the second or a combination of the

two is immaterial, as both are valid strategic

considerations (see People v. Taylor, 1 NY3d 174, 177).

App. 83

summation, as the latter made no comments which

would have required reversal of the conviction.

Although a few of his comments were marginally

objectionable, the summation as whole did not render

the trial unfair. As explained below, had trial counsel

contemporaneously objected he would only have

preserved meritless issues for appeal.

The prosecutor's summation was not inflammatory.

His evocation of a strangling was somewhat graphic,

but not excessively or gratuitously so. He described

what likely transpired in order to explain both how

defendant came to kill her and how he could have

done so without leaving forensic evidence. Although

there was no direct evidence that he had killed her in

this manner, the prosecutor's argument that he had

strangled her was based on inferences that could

reasonably be drawn from the evidence ( see People v.

Yu Dong, 16 AD3d_ 349). His reference to the 1983

choking incident was also proper. In describing how

Ms. Bierenbaum might have met her death at

defendant's hands, the prosecutor compared it to the

1983 incident not for the purpose of arguing that the

defendant had violent propensities, but to establish

his identity as the murderer and his criminal intent.

Evidence of the incident was properly admitted at

trial pursuant to People v. Molineux (168 NY 264) for

these very purposes. The prosecutor's arguments

involving the 1983 incident did not stray from any of

these permissible areas. I also note that the Appellate

Division stated in dictum that “the prosecutor's

arguments on the subject fof the 1983 incident] when

viewed in the complete context of the closing

statements, do not warrant reversal” (Bierenbaum,

301 AD2d at 150).

The defendant next contends that trial counsel should

App. 84

have objected to the prosecutor's comment that he

“wouldn't let [the police] search the apartment. The

defendant and his attorney stopped the cops from

doing a complete forensic search on the apartment.”

As noted, the prosecutor made this comment to

illustrate his argument that defendant lied to

acquaintances in order to divert suspicion. This

argument was entirely proper. He never suggested

that the jury could draw a negative inference from

defendant's (or his attorney's) refusal to permit a

search, or from defendant's employment of an

attorney. Moreover, after trial counsel moved for a

mistrial on this ground, Judge Snyder gave a curative

instruction to the jury as to the prosecutor's

comments in the course of her charge. It would

therefore not have availed defendant had the attorney

preserved the issue for appeal.

Trial counsel also moved for a mistrial based on the

prosecutor's comments in summation regarding the

description that defendant gave to the police of his

wife's clothing, The attorney had unsuccessfully

attempted to introduce evidence that, eleven or twelve

days after the disappearance, defendant filled out a

police form indicating that his wife went to Central

Park on July 7 wearing a white t-shirt bearing the

word “Aparados.” The description was not consistent

with several other descriptions of the shirt that the

defendant orally gave to the police when he first spoke

to them. On these occasions he described the shirt

only as a white t-shirt. The trial court precluded all

reference to the form on the ground that it was

unreliable, “self-serving” hearsay. Consequently, the

jury heard only that the defendant twice told

O'Malley and twice told Dalsass that his wife was

wearing a white t-shirt when she left the apartment.

App. 85

The ruling impacted adversely on the defense because

Joel Davis testified that the woman he saw in the

bagel store was wearing a multicolored t-shirt with a

“distinctive print,” “something like a map or an

island” with “a foreign name” Davis was 90 percent

certain that the foreign name was “Aparados.”

In his summation the prosecutor argued that Davis

was mistaken and confused when he reported seeing a

woman who could have been Gail Katz. He pointed

out disparities between Davis's description of the

woman he had seen, and known physical

characteristics of Katz. He also highlighted the fact

that Davis's description of the shirt worn by the

woman in the bagel store did not match the

defendant's description of his wife's t-shirt:

The description of the multi-colored t-shirt versus the

white t-shirt the defendant sees her leaving with. A

map or island covering 80 percent of the t-shirt versus

the white shirt. The t-shirt she's wearing with writing

on it, with the defendant, said it is a white t-shirt [;]

with the description of the writing versus. the

description of the defendant with a white t-shirt [;]

one, two or three words versus the defendant's

description of a white t-shirt.

Trial counsel moved for a mistrial on the ground that,

as the prosecutor was aware that the defendant had

filled out a form indicating that the t-shirt worn by

his wife had the word “Aparados” written on it, his

comments that there was no evidence supporting

Davis's description of the t-shirt, and that defendant's

description of the shirt contradicted that of Davis,

were improper. The trial court called trial counsel's

argument “misleading” and denied the apphcation.

App. 86

I find that trial counsel mischaracterized the

prosecutor's comment, as does defendant in the

instant motion. Contrary to defendant's contention,

the prosecutor neither stated nor implied that there

was no evidence supporting Davis's description of the

t-shirt, or that defendant never reported that there

was writing on the shirt. His argument was only that

Davis's description contradicted what defendant told

the police on four different occasions. As the argument

is meritless, it would not have availed defendant for

his attorney to have preserved it.

Defendant argues that trial counsel was ineffective for

failing to object to two parts of the prosecutor's

summation, which, he contends, impermissibly shifted

the burden of proof. Neither of these claims has merit.

The prosecutor was entitled to argue that defendant

was lying when he told Karen Caruana that he hired

a private investigator who found evidence that his

wife was alive and living in California. He did not

shift the burden of proof by suggesting that if

defendant's statement were true, “the investigator

would be testifying about the evidence from the

witness stand.” The prosecutor's statement was made

only in the context of establishing that defendant had

lied to Caruana. It contained no suggestion that

defendant was obligated to prove that his wife was

still alive. In addition, it would have been

meaningless for trial counsel to have objected on that

ground. The issue was no longer in the case, as he had

conceded at the beginning of the trial that she was

dead. Nor did the prosecutor change the burden of

proof by rhetorically asking, in regard to defendant's

theory that drug dealers had killed his wife, “where's

the evidence?... where's the proof?” The People may

respond in summation to arguments raised by the

App. 87

defense ( see People v. Martinez, 302 AD2d 271: People

uv. Robinson, 298 AD2d 161). Defendant had come

forward with the theory that risky behavior on the

part of Ms. Katz led to her death, and it was therefore

permissible for the prosecutor to respond in

summation that there was little or no evidence to

corroborate that hypothesis (see People v. Overlee, 236

AD2d_ 133, 143; People v. Gathers, 207 AD2d 751:

People v. Tankleff; 84 NY2d 992).

Defendant additionally argues that his attorney

should have objected when, he claims, the prosecutor

attacked his [trial counsel's] integrity. The statements

that “to a large extent during the summation [trial

counsel] distorted the record” and “has even ... gone so

as to make some facts up” were arguably excessive.

Even so, they fell far short of the type of comment

that would have required reversal of the conviction (

see People v. Long, 81 AD2d 521; People v. Spruill, 5

AD3d_ 318; People v. LaPorte, 306 AD2d 93: People uv.

Diaz, 170 AD2d 202, amended on other grounds 172

AD2d_ 341). In addition, to the extent that these

comments were objectionable, they were isolated. His

summation was not pervaded with flagrant examples

of misconduct which would deprive defendant of due

process ( see People v. D'Alessandro, 184 AD2d 114;

People v. Cobb, 188 AD2d 308). His comment to the

jury that trial counsel “was hoping you will grasp at

straws” was made in response to defendant's

argument that the death of Ms. Katz was somehow

tied to her drug use and was not improper ( see People

vu. Salaman, 231 AD2d 464: People v. Torres, 220

AD2d 269). For similar reasons it was not improper

for the prosecutor to state, in substance, that several

of trial counsel's arguments were far-fetched or not

based on the evidence in the case. These comments

App. 88

did not exceed the “broad bounds of rhetorical

comment permissible in closing argument” ( see People

v. Galloway, 54 NY2d 396,399). There was also

nothing objectionable about his comment that trial

counsel was trying to “disconnect the evidence.” The

statement, which was made in the context of the

prosecutor's argument that each piece of evidence

should be viewed as part of the whole and not in a

vacuum, did not constitute a personal attack.

Defendant claims that trial counsel did not present

evidence that might have countered the prosecution's

argument that he had to be prodded to report his wife

missing. He argues that Mr. Lewis should have

brought certain provisions of the 1985 New York

Police Department Patrol Guide to the jury's

attention. The Guide provided that, “Missing Persons

do not include. [pJersons eighteen years of age or

older, who have left home voluntarily because of

domestic, financial or similar reasons.” Under

guidelines in effect at that time Ms. Katz would not

have qualified as a missing person until enough time

passed to permit the police to infer that she was

“absent under circumstances indicating

unaccountable or involuntary disappearance.” Mr.

Lewis states that he was aware of these provisions,

but did not consider them relevant.

Trial counsel did not show a lapse of judgment in

ignoring the provisions. They were irrelevant to the

issues at trial, as there is no proof that defendant was

aware of them or that they influenced his conduct.

What was important was whether he, not the police,

considered his wife missing. The Guide provisions

were not germane to the prosecution's argument that

he waited a surprisingly long time before going to the

App. 89

police and that he appeared to dragging his feet

despite the repeated » rging of his wife's teacher and

friend, Dr. Yvette J ais, that he seek their help in

finding her. As the Guide was not relevant to his

apparent lack of concern, or his motivation in seeking

to delay the entry of the police into the case, it seems

probable that the trial court would not have permitted

trial counsel to introduce the provisions in question on

the defense case or cross-examine Detective O'Malley

as to the issue defendant now raises. Had the court

permitted the jury to learn of the guidelines, it would

not have affected the outcome of the trial. Trial

counsel's judgment was correct and he was justified in

not bringing the Patrol Guide provisions to the jury's

attention.

Defendant's attorneys were not ineffective for failing

to request that the jury be charged on the issue of

territorial jurisdiction. Assuming, for the sake of

argument, that there was no tactical reason not to

request such a charge, the attorneys were

nevertheless not ineffective because the jury could not

have found that defendant committed the murder but

that New York did not have territorial jurisdiction

over the crime.

CPL 20.20 provides in pertinent part that

a person may be convicted in the criminal courts of

this state of an offense defined by the laws of this

state, committed ... by his own conduct ... when:

1. Conduct occurred within this state sufficient to

establish:

(a) An element of such offense ....

App. 90

The State of New York has territorial jurisdiction over

a homicide constituting the crime of murder in the

second degree if the murderer either formulated the

intent to bring about the death of the victim or caused

her death in this state ( see People v. Tullo, 34 NY2d

712; People v. Guidice, 83 NY2d 630; People v, Seifert,

113 AD2d 80). The People's theory of the case, and the

only reasonable version of the murder permitted by

the evidence presented, 1s that he killed her in their

Manhattan apartment, folded or disarticulated her

body, stuffed it in a duffel bag, smuggled it out of the

building and took it to New Jersey. If defendant killed

her, therefore, he brought about her death in this

jurisdiction. :

Defendant contends, without explanation, that it was

possible for the jury to have found that, if defendant

killed his wife, he did so in New Jersey. The jury was

instructed that it was to decide the issue of guilt

based solely upon the evidence admitted at trial and

was not engage in speculation or guesswork. It is

difficult to discern how it might have found the victim

was killed in a manner other than that urged by the

People and not engage in engage in speculation or

guesswork. If the jury had accepted that defendant

did not kill his wife until after he left this state, it

would have had to find that Ms. Katz was unconscious

but still alive after the defendant folded and stuffed

her body in a flight bag and drove it the airport.

Even allowing for the possibility that the jury could

have accepted such a scenario, it still would have

found that New York had jurisdiction over the crime.

It was undisputed that defendant and his wife resided

in New York. Every incident shedding light on their

relationship and his intentions toward his wife

App. 91

occurred in this jurisdiction. The evidence established

that it was in New York that the marriage began to

become acrimonious and unravel. It was there that

she heard from him that he would harm her if she left

him, choked her in 1983, told Edward Doucet that he

hated her so much that he could kill her and gave

reason to his psychiatrist to send a letter to her to

warn her that she was in danger from him. If the

issue had been put before the jury, it could only have

found that defendant formulated an intent to murder

his wife in New York. There was simply no other

possibility. For this reason, New York had territorial

jurisdiction to prosecute the homicide ( see People uv.

Seifert, 113 AD2d 80). As the evidence established

that jurisdiction existed pursuant to CPL 20.20 (1)(a),

trial counsel were not ineffective in failing to ask that

the jury be instructed on the issue ( see People v.

Carvajal, 14 AD3d 165,173).

I reject the argument that defense counsel were

ineffective for failing to move for a trial order of

dismissal on the ground that there was insufficient

evidence of defendant's intent to kill his wife. It would

have been pointless to make such a motion, as the

record is replete with evidence from which the jury

could have inferred, beyond a reasonable doubt, that

defendant had the specific intent required by the

statute. This evidence, in conjunction with other

evidence establishing that he had a motive to kill her,

included proof that the defendant and his wife had a

turbulent marriage; that he told his friend, Edward

‘Doucet, that he hated his wife so much that he could

kill her; that he admitted to Dr. Feis that they had an

explosive argument with her the morning of her

disappearance; that she had received a letter from his

psychiatrist warning her that he had the potential to

App. 92

do her harm; that he had threatened to kill her if she

ever left him and that she intended to tell him the

weekend of her disappearance that she was going to

leave him: that he had choked her and rendered her

unconscious in 1983. Thus, had defendant's trial

attorneys moved for a trial order of dismissal on this

specific point, they would only have preserved a

meritless issue for appellate review. As the Appellate

Division noted, “This abundant array of damning

circumstantial evidence proves beyond any reasonable

doubt that defendant intentionally killed this

victim...” (Bierenbaum, 301 AD2d at 133).

In a letter dated January 12, 2005, defendant raises

an additional claim of ineffectiveness. Conceding that

it would have been difficult for trial counsel to have

discovered during the trial that the only motion

picture made about the Von Bulow case was released

in 1990, he nevertheless argues that nothing

prevented the attorneys from conducting research on

this issue in the five weeks between verdict and

sentence. Their failure to do such research, he

contends, constituted ineffectiveness of counsel. I find

that tnal counsel were not ineffective in failing to

focus on this relatively minor aspect of the trial in the

few weeks between verdict and sentence. It would

have been remarkable if the possibility occurred to

either of them in those weeks, ten years after the

release of the movie, and almost twenty years after

the Von Bulow trial, that no movie dealing with the

murder was released in 1984 or 1985.[FN15] Moreover,

FN15. Defendant states that appellate counsel

conducted two weeks of exhaustive research to

confirm this fact. He does not state when it occurred

to appellate counsel to investigate the matter.

App. 93

had trial counsel discovered this fact before sentence,

their only option would have been to bring a motion to

set aside the verdict pursuant to CPL 330.30, but such

a motion would have been denied. Counsel could not

have successfully moved under subdivision one of the

statute because defendant's claims concerning the

movie did not appear on the record (CPL 330,30 [1]).

Subdivision one was also foreclosed to them because

defendant's contention concerning the movie only cast

a portion of Ms. DeCesare's testimony into doubt, It

would not have required reversal of the conviction as

a matter of law (CPL 330.30 [1]: see People v. Carter,

63 NY2d 530, 536: People v. Johnson, 220 AD2d 294).

Subdivision two is inapplicable on its face. A motion

made pursuant to subdivision three (newly discovered

evidence) would also have been denied, as the new

evidence merely impeached or contradicted Ms.

DeCesare's testimony and would not have changed

the outcome of the trial ( see People v. Salemi, 309 NY

208: People v. Williams, 19 AD3d 228).

CONCLUSION

I find that the defendant was afforded meaningful

representation under the New “York State

Constitution. The defense was faced with a difficult

task. The case against the defendant was not

straightforward. As there was no direct proof that

defendant murdered his wife, the People relied on

many small pieces of circumstantial evidence to prove

their case. In building the case against the defendant

they wove together the testimony of over thirty

witnesses. The combined testimony of these witnesses

permitted the jury to infer that the defendant had a

App. 94

motive and intent to kill his wife, the opportunity to

kill her, the capability of doing so, and the means of

covering up the crime. The People established that he

was the last credible person to have seen her alive.

They also established that Ms. Katz was not suicidal

that 1t was not likely that she died at the hands of

anyone besides her husband. Lastly, they showed that

defendant did not appear to be worried about his

wife's disappearance, that he displayed no urgency in

finding her and engaged in behavior which seemed

designed to hinder the police and allay suspicion.

Although the People's evidence was overwhelming as

a whole, no one constituent piece of evidence was

alone dispositive of guilt. In fact, the opposite was

true; no one or two pieces of evidence proved much of

anything. It was precisely because the case was so

amorphous and built of so many components that it

was so difficult to defend.

Trial counsel began their defense in advance of trial

by moving for discovery and for hearings designed to

limit the evidence available to the prosecution at trial.

They were at least partially successful in their efforts

to preclude such evidence. Trial counsel also

effectively represented the defendant during the trial.

The defense did not have the option of concentrating

on a few key witnesses who formed the lynchpin of the

People's case - there were no such witnesses. Instead,

Mr. Lewis concentrated on the alternatives open to

him. He cross-examined the People's witnesses

effectively and attempted to sow doubt in as many

places as possible. In his summation he attacked the

People's case by concentrating on its individual

components, undermining each as best he could. He

argued that the memories of the People's witnesses

could not be trusted after so many years and that

App. 95

there was little or no evidence underlying the basic

premises upon which the Pe

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